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November 3, 2009

Mobile phones and magic bullets

November 3, 2009

Can the law advance education and healthcare in poor countries?

November 3, 2009
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I recently spent two weeks doing jury service in an inner London court – a grim experience of leaking municipal toilets, undrinkable coffee, frequently incompetent barristers and Dickensian judges, overseeing a squalid litany of petty crime. In between the alleged threats and beatings, I read Courting Social Justice, a new book on the use of the courts to enforce courting social justice coverpagesocial and economic rights (in particular healthcare and education) in Brazil, India, Indonesia, South Africa and Nigeria. It left me feeling a bit more optimistic about the role of the law.

The book asks if resort to the legal system makes governments more accountable (because they are forced to fulfil their promises) or less (because courts are often the preserve of the rich). The trade-offs can be complicated: in Costa Rica, a single decision by the Supreme Court led to an 80% reduction in mortality rates among AIDS patients, but on the other hand just after the court review, the health system needed to spend 8% of its medicines budget to treat just 0.012% of its patients.

The book’s key concept is ‘legalization’, which goes well beyond litigation to include monitoring compliance with judicial decisions, turning court decisions into new legislation, threatening to return to court, lobbying public officials and organizing public campaigns. Reality is very far from the myth of impartial judges delivering verdicts without any regard to the political or social context, as I saw in South Africa, where women’s organizations have found that singing and dancing outside courts trying cases of domestic violence greatly increases the chances of success.

So what were the book’s main findings?

The use of the courts is on the rise – ‘the language of rights and the cumbersome tools of the law have become a permanent and prominent part of policy-making.’ Overall, the volume of health litigation far outweighs that on education.

While activists are invariably disappointed at what courts can achieve, ‘from a historical perspective, the achievements seem downright impressive…. [In the countries studied] legalizing demand for rights might well have averted tens of thousands of deaths and enriched the lives of millions of others.’

What circumstances are most propitious for the use of the legal system to enforce rights?
– Laws and constitutions that promise far more than governments are currently delivering (frequently the case given the growing reference to social and economic rights in new constitutions around the world).
– But where governments have the capacity to respond (judges are remarkably cautious in keeping within the limits imposed by the real spending possibilities of states).
– and there is Legal capacity and substantial support for enforcement of rights, by the government, the public or civil society organizations (often the courts help the national government enforce policies on local governments, for example)

In general the researchers found it was far harder to secure collective rulings than individual ones (eg an individual demanding state provision of a particular new medicine – a Brazilian speciality), but the collective cases had much wider impacts, changing government policies that affect millions of

South Africa's Treatment Action Campaign has expertly combined litigation with campaigning

South Africa's Treatment Action Campaign has expertly combined litigation with campaigning

people – e.g. access to medicines (South Africa), free school meals or environmental regulation (India).

Some states and judicial systems are much more open to legalization of policy making (eg Brazil, South Africa, India) while others are much more hostile (the ordinary courts in Indonesia, Nigeria).

What the research reveals is that the courts do not go off on their own and start trying to force governments to do things they can’t afford (or if they do, they have very little success). Instead, they have become a part of an iterative policy-making process in which ‘litigation upsets the status quo, creating the context for a joint search for new solutions’ in areas such as access to medicines for new diseases, or shifts in public opinion on issues such as the right to food or work.

And it ends on an upbeat note: ‘the courts have become an additional place for deliberation and debate. When the courts work in congress with other branches of the state, legalization is democracy by another means.’
Development NGOs tend to leave the legal stuff up to the human rights organizations and their lawyers. Courting Social Justice suggests that we may be missing an important arena for action.


  1. Based on the posting, I think the book ‘Courting Social Justice’ explores “an important arena” to develop human rights and improve people’s livelihood in developing countries. The book uses comparative analysis of several developing countries including South Africa, Brazil, India, Nigeria and Indonesia to study the effectiveness of employing courts as policy-makers. I personally think it has an optimistic outlook. Since courts deal with many cases, they should be more aware of social problems. The idea is good but it’s hard to practice in all developing countries. Here are some prerequisites. 1) relatively stable political environment. 2) basic judicial system established. 3) coordination with government. Therefore, whether it is effective to use of the courts to enforce social and economic rights is a case-to-case analysis. For countries with the conditions, the method should be encouraged, while for those with poor judicial infrastructure, the first step is to set up a solid basis to use courts as policy-makers. Anyway, it’s better for developing countries to rule by law sooner than later.

  2. The underlying issue of having the law be responsible for the arena of education and healthcare is: has the law SUPPORTED individuals of the nations that have been mentioned in the article? In the nations that you mentioned that are hesitant to have legalization of policy making, such as in Indonesia and Nigeria, I’d be willing to bet that the reason for such hesitation is either: 1) the population hasn’t felt that the government has granted them equal access to education and resources in the past, so they are unwilling to trust now or, 2) there is a minority population that is granted a higher degree of access to resources (like in Nigeria), so the population who has a greater-than-equal access to resources is afraid that they will no longer have this access, if the policies become more “democratic” (equal). In theory, I completely agree that having policies responsible for healthcare and education would be optimal for developing nations. However, until governments have EARNED the trust of their people, establishing policies in the arenas of education and healthcare will not have any sustainable, long-term results. So, the first step is for the governments of all nations to prove that they are capable of granting equal access of resources to their entire population, and then the law will be an effective means of establishing policies in health, education, etc.

  3. It would be great if the habitants of the poor countries have the luxury of knowing that the law is on their favor. First of all,in most developing countries,the law is made by the middle and upper and also applied for them. I must also emphasize that there are several classes or ranks within the developing countries. The poorest of the poor does not even have the capacity of differentiating the right from the wrong;they relied on some elected officials who do nothing than enforcing them into more poverty. Furthermore, the fundamentals of every human being started with the basic needs such as food, shelter and so on. The underluing group has no access of such needs. Maybe the law should pressure these governments to provide food, shelter and then education and health.

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