Why is promising a right to food more politically appealing than delivering that food?

I think there’s an interesting parallel, and a contrast, with efforts to gain official recognition the right to water from governments across Africa. In this case, governments have largely failed to ensure that the population has access to clean and safe drinking water, and yet in many countries have resisted any suggestion that the right to water be recognised.

To recognise a right, which is a more slippery and less measurable concept, rather than to promise the very concrete and visible distribution of food or water, could be seen as a way of sidestepping accountability while making high profile and politically popular statements about rights.

But in some contexts, which is where I think the water supply in Africa case differs from Indian food, the term “rights” has become politicised in a different way. Rather than a politically rallying cry for government – “we support your right to this” – it has become intertwined with very sensitive issues of human rights and opposition politics – “we demand a right to this”.

In short, in India, the government is claiming rights as part of its own political territory, while in Africa, rights have already been claimed by unpopular NGOs and opposition political groups, making governments very wary.

If public policy outcomes = intentions x resources, then guaranteeing intentions and mandating resources (which is what such rights talk purports to do) is the “ultimate” in public policy. It is a way of signaling seriousness of intent without the messy business of assessing effects and consequences.

The divide between those who get the concept of unintended consequences–that neither intentions nor resources guarantee outcomes–and those who insist on playing the outcomes = intentions x resources game is particularly stark in the “rights” debate.

Also, why is it that I always have the impression, when reading this blog and some comments, that people mistake a ‘right to something’ with ‘a right to a predetermined and immutable set of policies about something’.

For instance, all of Europe accepts a number of social rights, like education or health. And the way each country organizes the provision and safeguarding of these rights in completely different manners. This multiplicity of strategies to ensure rights is actually seen as a good think, an opportunity for comparative learning between systems. And yet the right is the very same.

So, coming to Lorenzo’s assertion that intention x resources is not enough to ensure outcomes is nothing new in the rights debate. It is true of the right to due process and the prohibition of cruel and inhuman treatment as it is of the right to health or to food: at any given time, there probably is a set of policies that produces an improvement of outcomes in any given right. So rights-talk is not opposed to institutional learning and policy improvement: it actually requires them. Believing in the right to due process does not mean that the current judicial system is the only, or the best system we can have. Rights-talk helps us focus on the failings of the system, and demands action to correct such failings, as far is this is feasible.

@ Mathias “people mistake a ‘right to something’ with ‘a right to a predetermined and immutable set of policies about something’”

While you are correct to point out that this doesn’t need to be the case, it often is, and that is one risk of a rights-based approach.

For example, in Colombia, the constitutional court in 1998 interpreted the constitutional right to housing as requiring a cap on the price of housing credit. And now, when the cap is binding, very little credit flows. It appears to me that in the Colombian case, the debate on means to increase the supply of low-cost housing would be more open to alternatives were it not for the constitutional requirement. That has been my experience talking to members of the court and to other local participants in the debate.

Matthias: that I am Australian is probably relevant here. There is not much in the way of rights in our constitution, attempts to import bills of rights are very much contested and we manage to be regularly in the top three countries on the UH Human Development Index without much in the way of “guaranteed” rights. Rights talk does not resonate all that much Downunder, despite the enthusiasm of certain lawyers. (We have a very utilitarian political culture: think of us as the country where the Chartists won.)
Moreover, the right to due process or the bar on cruel and unusual punishment is rather different than a “right” to food, education or health. The former bar treating people in certain ways. The latter require that people receive certain goods and services: this is a much more extensive policy aim which require much wider action (including learning processes). The former is susceptible to judicial action in a way that is a lot less intrusive on political processes than the latter. (Which is why I am against importing Bills of Rights: too much power to judges.)
If such rights are not taken to require substantial government delivery, then Matthias’s point has more power. If they are, then we find we are in the outcomes = intentions x resources territory. Education policy, for example, is rife with it.

@Britt: I perfectly recognize that there are risks that courts might overstep their competences, or impose actions that are, after careful consideration, sub-optimal. And sometimes this might actually mean a lock-in of a bad policy (though this really depends on specifics of individual states, and I don’t think its necessary to do comparative constitutional law here; in the Colombian case you mentioned, couldn’t legislation be adopted that overcame the objections of the Court and still ensured a better flow of housing finance?).

But the opposite is also true. There are risks that, absent any constitutional provision enshrining a given right, courts will be powerless to stop states from adopting sub-optimal policies, or clearly discriminatory ones. Parliamentary supremacy is a good thing when your parliament can be relied on to represent the interests of the majority and still show respect and restraint towards minorities. That isn’t the case in many, many states. In those states, an independent judiciary is all the more indispensable.

The point I’m trying to make, then, is that in the case of socioeconomic needs, the recognition of a right empowers more actors to take part in the policy dialogue, and that, in itself, is a good thing. And the fact that you have a right does not necessarily mean that you are locked in respect to specific policies, or that all power is given over to judges. It all depends on constitutional architecture.

@Lorenzo: I’ve gone through the whole negative/positive liberties debate in comments in previous blog entries here. despite a widespread notion that these ‘types of rights’ are fundamentally different, current human rights theory (and case-law) have gone a long way in showingg that they have a lot in common. Due process, in particular, involves the provision, by the state, of a very sophisticated judicial apparatus, the contours of which vary considerably from country to country, as does the coverage (broader or narrower in terms of standing, or areas open to judicial review). This extremely costly and complex apparatus does not emerge because the state ‘abstains from interfering’. To the contrary, the state drives the entire process of creation, and improvement of this mechanism. So, as there is no due process without a state ‘judicial policy’, there is no right to education, without a comparable institutional arrangement (though it need not be entirely public). The prohibition of torture goes the same way: it requires standards, training and monitoring of law enforcement personnel. All of this is costly too, and emerges from the direct involvement of the state. In any of these policies, scarce resources can be put to good use, or to bad use, and there is a need for a permanent effort of improvement. Which is why no state can claim to be infallible in human rights matters…

The question was why may it be more popular to demand the right to food than to devise a system that delivers food. Rights talk may be good political strategy or only rhetoric, as some above say, but it also fits squarely into Rescue Industry theory. To be a member of the Rescue Industry it is important to demonstrate indignation about a social problem. It is then conventional to claim a ‘right’ to get out from under this problem. Many rescuers do not see their own jobs to entail doing the work of inventing the solution.

@Britt: Thanks for your response.

Practically speaking, in any country, the courts are an inflexible tool for determining production and pricing of private goods.

I don’t think you can equate a human-rights approach to having courts set the price for water, food, or credit. That’s not what it’s about. Court decisions might influence prices (as they apparently did in Colombia, though I lack the details to respond more fully), of course. By ruling under which conditions certain goods or services must be provided, Courts might influence supply and demand.

However, courts are just one of the fora in which policy-making on the provision of essential services is taking place. In most countries, by the way, access to court on these issues is severely limited. Courts are at their most useful in ruling out policy options that are clearly discriminatory, or that fail to consider particularly vulnerable groups.

Inefficient results are not generally a basis for reversing a decision.

Well, if (in)efficiency (regarding a vulnerable group, for instance) was one of the reasons for adopting the decision, it is arguably also a reason to reverse or modify the decision. Human rights courts, national and international, constantly decide cases on proportionality grounds. They consider whether a given policy, deemed necessary by the state, pursues a valid public objective, and whether the means are adapted to the ends. This second part of the test is obviously affected by efficiency considerations.

I wonder if there’s a study of the correspondence of constitutional/legal/rights requirements for food/shelter/income levels or whatever private good, and the eventual delivery of the good.

There are some studies on the impact of treaty ratification on outcomes in human rights provision, particularly in the field of health, If I recall correctly (I think they’ve been quoted in previous posts here). I find these studies deeply unsatisfactory, because ratification of a treaty is a very bad predictor for pretty much everything (investment treaties are famously known for not attracting investment, for instance). I am not aware of comparative studies looking at the national implementation of rights-based policies, and their impact on actual delivery of services, though.

…legal pronouncements are at best useless and more normally counterproductive.

Why do political communities adopt rights? Is it in order to enhance the provision of services, only? If that were the case, rights wouldn’t be needed as long as the social commitment to the provision of services remained stable. Rights are there for when things ‘go wrong’, for when short-term political expediency dictates that the majority should ignore minorities and vulnerable groups, for instance. So even when it can be shown that a right does not improve delivery of a given ‘basic need’ in the short term, it might still be useful in the longer term, when policy changes threaten to affect delivery of basic needs in a selective, discriminatory manner.