Political Trust as the Basis for a Social Rights Enforcement Framework.

Author:Vitale, David

Introduction

  1. What Do I Mean by "Political" Trust?

  2. Justifying Political Trust as the Basis for an Enforcement Framework

    1. An Instrumental Justification

    2. A Theoretical Justification

    3. A Practical Justification

  3. Conceptualizing Political Trust in the Social Rights Context

    1. The Expectation of Goodwill

    2. The Expectation of Fiduciary Responsibility

    3. The Expectation of Competence

    4. What Would a Political Trust-Based Enforcement Framework Look Like?

    Conclusion

    Introduction

    Social scientists have long explored the concept of trust. They have sought to define what trust is, to explain how it operates in contemporary societies and to understand its relationship with the critical end of cooperation. And owing in large part to the relationship between trust and cooperation, legal scholars--equipped with the body of literature yielded by such social scientific exploration--have, in turn, taken steps to use the concept of trust to better understand and advance their respective fields of law. (1) This article draws inspiration from that body of legal research. It seeks to employ trust--specifically, the trust which citizens hold in government actors (what I broadly call "political trust")--to contribute to a contentious area of legal scholarship: the judicial enforcement of constitutional social rights. (2)

    There is presently a debate over how courts in contemporary social democracies can and should enforce constitutional social rights. (3) This debate forms part of a larger, longstanding conversation among scholars, politicians and jurists around social rights enforcement. In its "first wave", the focus of the conversation was on the justiciability of social rights--that is, whether constitutional social rights are enforceable by courts. (4) That wave reached its peak during the late 1980s to early 1990s when the new democracies of the Global South and the former Soviet Union were deciding whether to include express (and enforceable) social rights provisions in their respective constitutions. The arguments against social rights' justiciability fell into two principal categories: institutional legitimacy and institutional capacity. The argument from legitimacy posited that social rights matters, having significant budgetary consequences as well as the potential to shape what society looks like, are best left to the elected--and politically accountable--branches of government. Courts, being unelected, lack legitimacy to interfere with or second-guess those branches' decisions or actions. The argument from capacity suggested that courts should not decide social rights matters since those matters raise polycentric problems which are not suitable for adjudication and because the courts lack the expertise and resources necessary to decide such matters. (5)

    However, after intense debate (including social rights scholars forcefully challenging the various assumptions underlying the arguments from legitimacy and capacity), many new democracies ultimately opted for the inclusion of social rights in their constitutions. (6) Moreover, in more established democracies, several courts have read social rights into their constitutions. (7) And most scholars, jurists and politicians have now come to accept social rights' justiciability, recognizing that the arguments from legitimacy and capacity do not support the conclusion that social rights are non-justiciable but, rather, that "caution is warranted" in their enforcement. (8) So, following from this, the social rights enforcement conversation (which is now in its "second wave") is no longer focused on whether social rights are enforceable by courts, but, assuming they are, how courts should enforce them. (9)

    In recognition of the apparent shift in the social rights enforcement conversation, as well as in an effort to continue moving the conversation forward, I start my argument from the position that social rights are justiciable. Therefore, it is not my intention to contribute to the first wave (justiciability) debate--at least not directly. (10) This is not to say that the arguments from legitimacy and capacity are without merit. But to repeat, those arguments do not warrant the conclusion that social rights are non-justiciable; they warrant caution in courts' enforcement of those rights. This article thus seeks to contribute to the second wave debate; and consequently, it addresses the question of how courts should enforce social rights.

    Other commentators--in contribution to this second wave debate--have proposed an array of frameworks for social rights enforcement, rooting those frameworks in ideas which include inter-institutional dialogue, (11) democratic experimentalism, (12) deliberative democracy (13) and judicial incrementalism. (14) In this article, I argue that the concept of political trust, as it has been conceptualized in the social science literature, is of value to this debate. Specifically, I advance the claim that political trust offers a promising basis for a legal framework for enforcing social rights in contemporary social democracies. (15) Put simply, I want to suggest that courts, in fulfilling their constitutional role as enforcers of social rights, should turn to the concept of political trust, employing it as a sort of adjudicative tool for defining governments' enforceable obligations to citizens with respect to social rights. (16)

    Now, given the breadth of the political trust concept as well as the many complexities raised by social rights enforcement, this article cannot set out a comprehensive political trust-based framework for enforcing social rights. And thus, that is not my aim in this article. My aim, rather, is to introduce the concept of political trust to the above social rights enforcement debate, justifying why the concept offers a promising basis for an enforcement framework as well as taking steps to conceptualize it in the context of this debate. Consequently, this article presents what may be considered the beginnings of such a political trust-based framework.

    I advance my claim in three parts. In Part I, I elaborate a bit upon what I mean by "political" trust. Then, in Part II, I offer three justifications for why political trust offers a promising basis for a social rights enforcement framework. They are: (a) the instrumental value of political trust to contemporary social democracies (an instrumental justification); (b) drawing on the body of fiduciary political theory literature, the fiduciary nature of the relationship between citizens and their government with respect to social rights (a theoretical justification); and (c) the capacity of a political trust-based framework to strike an appropriate balance between what has been called the "two wrongs" of social rights enforcement--judicial usurpation and judicial abdication (a practical justification). And finally, having justified its value in this area, I take steps in Part III to conceptualize political trust in the specific context of social rights. My conceptualization in this regard provides us with some insight into what a political trust-based framework for enforcing social rights would entail.

  4. What Do I Mean by "Political" Trust?

    In the social science literature, trust has frequently been described as involving a three-part relationship between a trustee (A), a truster (B) and a good or service which the trustee controls and which the truster either needs or wants (X). (17) That relationship takes the form of "B trusts A with respect to X". As I noted earlier, by political trust I mean the trust which citizens hold in government actors. (18) Accordingly, when I speak of political trust, A in this three-part relationship refers to government, B refers to citizens and X refers to the many social goods and services at issue in social rights (e.g., those pertaining to health care, housing, education, etc.) which governments control and which citizens need from government. For ease of reference, I call this three-part relationship the "citizen-government relationship".

    In referring to government, I am referring specifically to the elected or representative branches of government (the "elected branches"). (19) In there, I include the legislature and the executive (which, in turn, includes civil servants and the various administrative agencies relevant to social welfare). (20) Next, when I refer to "citizens", I do not mean it in the sense of citizenship as legal status. I use the term, rather, to denote those afforded the protection of constitutional social rights. Hence, depending on the jurisdiction, citizens may include residents and individuals of other legal status. And lastly, the social goods and services which X represents depend on the right at issue; but generally, X denotes physical goods, personnel, infrastructure, equipment, and benefits or services. The legislature exercises its control over those social goods and services by contributing amendments to and promulgating the primary legislation which defines the parameters of state-delivered social programs, as well as endorsing the budget which allows the state to fund (and deliver) programs; the executive exercises its control by preparing the bulk of primary legislation introduced to the legislature, and then, by supplementing, amplifying and implementing that legislation through a range of administrative action. (21) These legislative and administrative steps are prerequisites to the state-delivered social programs that grant citizens access to the social goods and services. Further, because social rights are said to promise social goods and services which citizens need in order to lead a decent life, I am assuming that in the citizen-government relationship, the social goods and services at issue are not merely wanted--but needed--by citizens. (22)

  5. Justifying Political Trust as the Basis for an Enforcement Framework

    1. An Instrumental Justification

      The first justification which I put...

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