11 - The New Managerialism

Summary

The constitutional entrenchment of economic and social rights often requires courts to intervene directly in the administration of government. Such rights – to access goods, services, and programs such as social security, education, and health care – are now present in more than two-thirds of the world’s constitutions.¹ Newer constitutional amendments extend such rights to housing, land, water, and a clean environment, implicating a wide array of government actions or omissions. Moreover, despite the conventional wisdom that such rights should not be enforced by courts, and should be entrenched at most as directive principles or other statements of aspiration, the duties for government that such rights create are increasingly justiciable.² For better or worse, courts have become central in enforcing both negative and positive duties, in complaints arising from such matters as medical treatment denials, evictions, education outcomes, pollution levels, or food distribution schemes.