https://orcid.org/0000-0002-2419-9777
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ABSTRACT
One criticism of the human rights framework is that it has not – and therefore, some argue, cannot – meaningfully contest the hegemony of neoliberal economic thinking. In this article, we argue that the manner in which the disciplines of human rights and economics ‘speak past each other’ is a critical factor in this perception. While there has been a notable push to strengthen interrelations between the two fields, for the most part this has primarily been through the application of human rights norms to specific economic issues, rather than as a challenge to the logic underpinning economics, as a discipline. The article draws from a year-long project to build a community of practice at the nexus of human rights and economic justice, primarily in South Africa. South Africa is an illustrative context in which to explore cross-disciplinary engagement. While it has one of the most progressive constitutions in the world and a vibrant human rights community, the government has neglected rights in economic policymaking. This article considers the theoretical, methodological, and strategic opportunities and challenges involved overcoming such contradictions. In particular, we argue for the usefulness of a law and political economy (LPE) approach to build out the interrelations between the two fields.
Notes
1 Out of necessity, we use the term ‘progressive’ here to indicate those economists working, often outside of the mainstream, with a clear political purpose. We recognise that it is a broad and contested term and acknowledge its imperfections. For some it may be interchangeable with ‘heterodox’ or even ‘leftist’ or ‘feminist’. However, these are also contested terms that may not capture the identities of all the individuals involved.
2 See for example Joshua Curtis, ‘Merging Socio-Economic Rights and Heterodox Economics: Emancipatory and Transformative Potentials’, Series on Economics and Law in Conversation (Laboratory for Advanced Research on the Global Economy, Centre for the Study of Human Rights, LSE, October 2016); Radhika Balakrishnan and Diane Elson, Economic Policy and Human Rights: Holding Governments to Account (Zed Books, 2011); Center for Economic and Social Rights and Christian Aid, ‘A Rights-Based Economy: Putting People and Planet First’ (October 2020) < https://www.cesr.org/rights-based-economy-putting-people-and-planet-first/> accessed 3 May 2022.
3 Institute for Economic Justice, ‘Building a Field of Economics and Human Rights: Lessons from South Africa’ (April 2021) < https://www.iej.org.za/building-a-field-of-economics-and-human-rights-lessons-from-south-africa/> accessed 3 May 2022.
4 Dan Seymour and Jonathan Pincus, ‘Human Rights and Economics: The Conceptual Basis for their Complementarity’ (2008) 26 Development Policy Review 4, 387.
5 Michael A. Wilkinson and Hjalte Lokdam, ‘Law and Political Economy’ (LSE Legal Studies Working Paper, 2018).
6 Jedediah Britton-Purdy, Amy Kapczynski and David Singh Grewal, ‘Law and Political Economy: Towards a Manifesto’ (LPE Project, 6 November 2017) <https://lpeproject.org/blog/law-and-political-economy-toward-a-manifesto/> accessed 3 May 2022.
7 Duncan Kennedy, ‘The Stakes of Law, or Hale and Foucault!’ (1991) 15 Legal Studies Forum, 332.
8 Ibid., 327.
9 Institute for Economic Justice, (n 3) 20.
10 Ibid., 7.
11 Allison Corkery and Gilad Isaacs, ‘Human Rights Impact Assessment and the Politics of Evidence in Economic Policymaking’ (2020) 24 International Journal of Human Rights 9.
12 Ibid., 17.
13 Curtis (n 2).
14 See, for example, Peter Uvin, Human Rights and Development (Kumarian Press, 2004); Philip Alston and Mary Robinson, Human Rights and Development: Towards Mutual Reinforcement (Oxford University Press, 2005); Thomas Pogge, World Poverty and Human Rights (Cambridge University Press, 2007).
15 Seymour and Pincus (n 3) 393.
16 See, for example, M. Rodwan Abouharb and David Cingranelli, Human Rights and Structural Adjustment (Cambridge University Press, 2007); Sigrid Alexandra Koob, Stinne Skriver Jørgensen And Hans-Otto Sano, Human Rights and Economic Growth: An Econometric Analysis of Freedom and Participation Rights (Danish Institute for Human Rights, 2017).
17 Philip Alston, ‘Extreme Inequalities as the Antithesis of Human Rights’ (Open Democracy, 27 October 2015) <https://www.opendemocracy.net/en/openglobalrights-openpage/extreme-inequality-as-antithesis-of-human-rights/> accessed 3 May 2022.
18 See, for example, Diane Elson, ‘Budgeting for Women's Rights: Monitoring Government Budgets for Compliance with CEDAW’ (UNIFEM, 2006).
19 James Heintz, Radhika Balakrishnan and Diane Elson, ‘Financial Regulation, Capabilities and Human Rights in the US Financial Crisis: The Case of Housing’ (2011) 12 Journal of Human Development and Capabilities 1.
20 See for example various reports of the United Nations Independent Expert on the effects of foreign debt on human rights, ‘Independent Expert on Foreign Debt’ (OHCHR) <https://www.ohchr.org/en/special-procedures/ie-foreign-debt> accessed 3 May 2022.
21 See, for example, Center for Economic and Social Rights ‘Assessing Austerity: Monitoring the Human Rights Impacts of Fiscal Consolidation’ (2018).
22 See, for example, Budget Justice Coalition, ‘Imali Yesizwe (Our Nation's Money)’ (Budget Justice Coalition, 7 December 2021) <https://budgetjusticesa.org/media/budget-justice-coalition-imali-yesizwe-our-nations-money/> accessed 3 May 2022.
23 See, for example, Mark Heywood, ‘Austerity Budgeting (Not Yet) on Trial at Constitutional Court’ Daily Maverick (Johannesburg, 25 August 2021) <https://aidc.org.za/austerity-budgeting-constitutional-court-aidc/> accessed 3 May 2022.
24 Seymour and Pincus (n 3); Margot E. Salomon and Colin Arnott, ‘Better Development Decision-making: Applying International Human Rights Law to Neoclassical Economics’ (2014) 32 Nordic Journal of Human Rights 1, 44.
25 Mark Heywood, ‘South Africa's Journey from Socialism to Human Rights: The True Confessions of an Errant Socialist’ (2019) 11 Journal of Human Rights Practice 2.
26 Seymour and Pincus (n 3) 403.
27 Salomon and Arnott (n 23) 67.
28 Ibid.
29 Dustin N. Sharp, ‘Pragmatism and Multidimensionality in Human Rights Advocacy’ (2018) 40 Human Rights Quarterly 3.
30 Kennedy (n 6) 332.
31 K. Sabeel Rahman, ‘Domination, Democracy, and Constitutional Political Economy in the New Gilded Age: Towards a Fourth Wave of Legal Realism’ (2016) 94 Texas Law Review, 1340.
32 Radhika Balakrishnan in Conversation with Joshua Curtis, ‘Advancing Human Rights through Economics’, Series on Economics and Law in Conversation (Laboratory for Advanced Research on the Global Economy, Centre for the Study of Human Rights, LSE, January 2016).
33 Sharp (n 28) 510.
34 See, for example, Karen Zivi, Making Rights Claims: A Practice of Democratic Citizenship (Oxford University Press, 2012).
35 Philip Harvey, ‘Human Rights and Economic Policy Discourse: Taking Economic and Social Rights Seriously’ (2002) 33 Columbia Human Rights Law Review.
36 Salomon and Arnott (n 23) 60.
37 See for example OHCHR and Center for Economic and Social Rights, ‘Who Will Be Accountable? Human Rights and the Post-2015 Development Agenda’ (2013) < https://www.ohchr.org/sites/default/files/Documents/Publications/WhoWillBeAccountable.pdf> accessed 3 May 2022.
38 See, for example, Allison Corkery and Ignacio Saiz, ‘Progressive Realization Using Maximum Available Resources: The Accountability Challenge’ in Jackie Dugard et al. (eds), Research Handbook on Economic, Social and Cultural Rights as Human Rights (Edward Elgar, 2020), 286.
39 Julia Dehm, ‘A Pragmatic Compromise between the Ideal and the Realistic’: Debates over Human Rights, Global Distributive Justice and Minimum Core Obligations in the 1980s’ in Christian Olaf Christiansen and Steven L. B. Jensen (eds), Histories of Global Inequality: New Perspectives (Springer, 2019).
40 Zachary Manfredi, ‘Against ‘Ideological Neutrality’: On the Limits of Liberal and Neoliberal Economic and Social Human Rights’ (2020) 8 London Review of International Law 2, 3.
41 Committee on Economic, Social and Cultural Rights, ‘General comment No. 3: The nature of States parties’ obligations (art. 2, para. 1, of the Covenant)’ from Fifth Session (1990).
42 Katherine G. Young, ‘Introduction’ in Katherine G. Young (ed), The Future of Economic and Social Rights (Cambridge University Press, 2019), 14.
43 Dehm (n 39).
44 CESR and the BrettonWoods Project, ‘Human Rights and the IMF's COVID Response’ (Recovering Rights Series, December 2020) <https://www.cesr.org/sites/default/files/Brief%2012%20-%20IMF%20FINAL%20PDF.pdf> accessed 3 May 2022.
45 Olivier De Schutter, ‘Public Budget Analysis for the Realisation of Economic, Social and Cultural Rights: Conceptual Framework and Practical Implementation' in Katherine G. Young (ed), The Future of Economic and Social Rights (Cambridge University Press 2019) 584.
46 Manfredi (n 40) 19.
47 Institute for Economic Justice (n 3) 8.
48 Institute for Economic Justice (n 3) 20.
49 Ibid.
50 See, for example, Michael A Bernstein, A Perilous Progress: Economists and Public Purpose in Twentieth Century America (Princeton University Press, 2001).
51 Institute for Economic Justice (n 3) 22.
52 See, for example, the comments in the IMF approval of emergency support during COVID-19. IMF, ‘IMF Executive Board Approves US$4.3 Billion in Emergency Support to South Africa to Address the COVID-19 Pandemic’ (IMF Press Release No. 20/271, 27 July 2020) <https://www.imf.org/en/News/Articles/2020/07/27/pr20271-south-africa-imf-executive-board-approves-us-billion-emergency-support-covid-19-pandemic> accessed 3 May 2022.
53 See, for example, Allison Corkery and Sally-Anne Way, ‘Integrating Quantitative and Qualitative Tools to Monitor the Obligation to Fulfil Economic, Social and Cultural Rights: The OPERA Framework’ (2012) 30 Nordic Journal of Human Rights, 324.
54 Daniel Hirschman and Elizabeth Popp Berman, ‘Do Economists Make Policies? On the Political Effects of Economics’ 12 Socio-Economic Review 4 (2014), 790.
55 Martha Fineman and Terence Dougherty (eds), Feminism Confronts Homo Economicus: Gender, Law, and Society (1st edn, Cornell University Press, 2005).
56 Irene van Staveren, ‘Efficiency’ in Jan Peil and Irene van Staveren (eds), Handbook of Economics and Ethics (Edward Elgar Publishing, 2009), 107; see also Amartya Sen, On Ethics and Economics (Wiley, 1991).
57 As van Staveren notes 'This leads to the conclusion that Pareto efficiency is not really about maximum efficiency, but rather about relative maximum utility, that is total utility constrained by a strong no-harm principle. In other words, Pareto efficiency allows for the wage of resources – land, food or health care – by the affluent. Ibid.
58 Sen (n 52) 49.
59 van Staveren (n 52) 111.
60 Corkery and Isaacs (n 10) 12.
61 Ibid.
62 See also Justin Parkhurst, The Politics of Evidence: From Evidence-Based Policy to the Good Governance of Evidence (Routledge, 2017).
63 Paul O’Connell, ‘On the Human Rights Question’ (2018) 40 Human Rights Quarterly 4.
64 Joe Wills, Contesting World Order: Socioeconomic Rights and Global Justice Movements (Cambridge University Press, 2017), 64.
65 See, for example, ‘Austerity can be defeated’ Amandla Magazine (Issue 75, March 2021) <https://aidc.org.za/austerity-can-be-defeated-amandla-75-editorial/> accessed 3 May 2022.
66 Institute for Economic Justice (n 3) 23.
67 Institute for Economic Justice (n 3) 24.
68 Ibid.
69 Ibid., 25.
70 Committee on Economic, Social and Cultural Rights, ‘Concluding observations on the initial report of South Africa’ (November 2018), para. 17, UN Doc E/C.12/ZAF/CO/1.
71 K. Sabeel Rahman, ‘Constructing and Contesting Structural Inequality’ (2018) 5 Critical Analysis of Law 1, 108.
72 Rahman (n 30) 1344.
73 Sandra Liebenberg, ‘The Participatory Turn in South Africa's Social Rights Jurisprudence’ in Katherine G. Young (ed), The Future of Economic and Social Rights (Cambridge University Press, 2019).