Rights, Democracy and Development
What’s law got to do with it?
Legal norms and institutions impact on how people are able to live their lives in many different and often unintended and unexpected ways.
In Colombia, 143 000 people approached the courts in 2008 alone claiming that their right to health was violated. In Brazil, Costa Rica and Argentina a similar ‘pandemic of litigation’ is underway. This has encouraged health rights activists, worried policy-makers, bewildered judges and the World Health Organisation to question how this affects health spending. In Litigating the Right to Health we cooperate with top international and local researchers from many disciplines, and engage in dialogue with practitioners to provide some answers to the questions concerning what drives the litigation wave and what the implications are. The picture is diverse. In Latin America, most cases are brought by individuals claiming that treatment is either not offered by the health system or it is offered, but denied in practice. In Colombia and Argentina, the latter is the most frequently made claim. This shows that the courts can have an important regulatory function where the health care system fails. Yet, by policing the system, the courts also seem to be encouraging problems of unequal access, the very same problems they are trying to solve. In systems based on private insurance, insurance companies seem to use the courts as gate-keepers, knowing that only some potential patients will be able and willing to go to court to get what they are entitled to. Resourceful patients are more likely to go to court, particularly where the threshold of access is high. These patients often ask for expensive treatment and medication that, according to widely used criteria, should not be a priority given the resource contraints faced by these countries. Large numbers of such cases are likely to deepen existing inequalities. Cases brought in the public interest with a view to change health policies are more likely to benefit more disadvantaged groups of patients and advance the right to health in society. Such cases have been more common in India and South Africa.
Poverty reduction and gender justice in contexts of complex legal pluralism explores the role played by law in aiding – or hindering - gender justice. Case studies in Africa, Latin America and the Middle East provide nuance to rights-based approaches to development, which assume that the strengthening of respect for human rights through national law and international treaties will contribute to greater gender equity and reduction in women’s poverty. They show how discourses rooted in culture, custom, tradition and religion interact with these rights in different ways, and how this shapes and regulates personal, social, political and economic conduct. Legal pluralities thus shape opportunities for personal autonomy, political participation and access to economic resources, and are critical for women’s livelihood prospects and possibilities for escaping poverty. A key issue in this context is how legal pluralism plays out with regard to land rights. This issues is also explored in the project Land and Law in Latin America and Africa, which is a central initiative within the Human Rights Programme.
The project on transitional justice, violence and reconciliation is the other main focus of the Human Rights Programme. In societies that seek to build lasting peace after a history of repression, widespread violence or full scale civil war, law takes on a particular significance. On the one hand there is the task of (re)building the rule of law in a forward-looking sense that establishes conditions for non-violent conflict resolution. At the same time there is the question of what to do with the crimes of the past. Increasingly, institutions such as war crime tribunals and truth commissions are put in place to deal with the retrospective issues of transitional justice - sometimes decades after the transition took place. The trend is puzzling, given the scarcity and ambiguity of knowledge about the effects of such transitional justice mechanisms. The CMI project examines transitional justice processes to understand when and how they contribute to social peace and reconciliation.
Legal pluralities shape opportunities for personal autonomy, political participation and access to economic resources
Courts in transition provides insights into when and how legal enforcement of social rights can be a source of social transformation, an avenue that poor and marginalised people can use to claim and advance their rights rather than an instrument serving the privileged. It also explores new and more dialogic ways in which courts can and do approach social rights without unduly stepping into the domain of democratically elected authorities. The book Courts and Power in Latin America and Africa argues that single-factor explanations are unable to explain when and why courts in Latin Amercia and Africa fill their democratic accountability function. It is necessary to take into account institutional design, legal culture as well as the nature of the key actors.
Democratisation in Africa has more often than not created regimes that are unwilling to abide by the law. Instead, law and legal institutions loose their restraining force as they become tools for rule. Most centrally, elections become effective mechanism for holding on to power - as argued in the project on Election processes, liberation movements and democratic change in Africa. The dynamics of electoral democracy is also explored in the project on Political Parties in Angola.
