Book Feature: Trust, Courts and Social Rights: A Trust-Based Framework for Social Rights Enforcement( David Vitale)
Picture Credit: "cambridge.org”
Editor’s Note: Last year, Professor David Vitale published an innovative and original book proposing a framework for the judicial enforcement of socio-economic rights rooted in the notion of political trust. Given its potential value for the enforcement of socio-economic rights on the African continent and its extensive engagement with the jurisprudence on socio-economic rights in South Africa, African Law Matters sat down for an interview with David about this recent book.
David, welcome to African Law Matters. We look forward to understanding more about your book and its implications for the African continent.
1) What is political trust, and why is it important?
Political trust refers to the trust of citizens in government actors. By “government actors,” I mean particularly the legislative and executive branches of government (the political branches) and those individuals who staff them. Political trust is important for many reasons. First, and foremost, in any democracy, citizens should be able to trust their government; and government actors, as citizens’ representatives, should act trustworthy. At the same time, political trust is important given its link to citizens’ cooperation with the government. Studies have consistently shown that the more citizens trust government actors, the more likely they are to cooperate with them, tolerate the political regime, and voluntarily comply with laws and government demands. Such cooperation is vital to any democracy as it yields social stability, economic welfare, and effective governance.
2) Why do you think political trust is important for the enforcement of socio-economic rights specifically?
The suggestion that citizens should be able to trust their government is especially applicable, I think, when it comes to the goods and services that are the focus of socio-economic rights (e.g., housing, education, health care, social security). Also, political trust is important because the cooperation that follows from it manifests itself in two forms that are fundamental to socio-economic rights enforcement. First, it manifests itself as citizens’ willingness to pay taxes. Studies have shown that citizens are less likely to pay taxes if they do not trust their government. Given that the state’s provision of social goods and services depends on taxes, low levels of trust – and, in turn, cooperation – could seriously jeopardise social programmes. Secondly, citizens’ cooperation with the government also manifests itself as citizens’ overall support for social policies. If citizens do not trust their government, they will not support the policies their government develops and implements, and those policies will not likely succeed.
3) Can you provide us with one argument as to why you think political trust can provide an attractive framework for the judicial enforcement of socio-economic rights?
In my book, I advance four justifications – instrumental, theoretical, practical, and democratic – for why political trust should provide the basis for a legal framework for the judicial enforcement of socio-economic rights. Here, I will focus on one aspect of my practical justification. Commentators have noted that when enforcing socio-economic rights, judges should neither usurp the policymaking role of the political branches by allocating resources themselves (judicial usurpation) nor abdicate their role as protectors of constitutional rights by, for example, showing too much deference to the other branches (judicial abdication). They must, rather, opt for a middle ground between these two extremes.
Political trust, I suggest, offers such a middle ground. It does so because its principal focus, as I conceptualise it, is on the procedures followed by government actors when allocating the relevant resources. Because of this, the courts, in their application of a trust-based framework, do not define the substance of social policy in a way that usurps the political branches’ policymaking role. At the same time, however, they do not abdicate their role: by ensuring that the procedures followed by the political branches in developing and implementing social policy meet certain standards, the courts, I submit, play a meaningful part in the realisation of citizens’ socio-economic rights and, therefore, fulfil their role as enforcers of those rights.
“In any democracy, citizens should be able to trust their government; and government actors, as citizens’ representatives, should act trustworthy”
4) You outline three expectations that courts can use when seeking to fortify trust in a polity: can you explain to us the implications of an expectation of goodwill for socio-economic rights jurisprudence?
In the context of socio-economic rights, I claim that expecting goodwill from the political branches means two things: citizens expect the political branches to make decisions in a procedurally fair way, and they expect them to manifest “good intentions” in their decision-making. The first expectation (procedural fairness) includes acting transparently, engaging meaningfully with citizens (especially those impacted by the decision), and respecting citizens’ right to equality. The second expectation (good intentions) reflects an expectation of non-intransigence, expecting government actors not to willfully refuse to fulfil their obligations.
5) What would the expectation of competence mean for a judiciary seeking to enforce socio-economic rights in societies with limited skills in the public sector?
In the socio-economic rights context, the expectation of competence, I claim, translates into an expectation of evidence-based policymaking (EBPM). Put simply, citizens, in trusting those who staff the political branches, expect them to base their decisions on the best available evidence. A trust-based framework does not require, however, that public sector staff have the requisite knowledge and expertise themselves. They can – and should – draw on outside expertise to inform their decision-making.
6) What are the practical implications of the expectation of fiduciary responsibility for the judicial enforcement of socio-economic rights?
The expectation of fiduciary responsibility, I claim, translates into an expectation of non-corruption from the political branches’ staff. By this, I mean that the relevant staff will make their decisions in the best interests of their citizens, not their own personal interests. There are several steps that the judiciary can take in this regard. These steps include: greater probing into the state’s financial resources, strictly enforcing public procurement law, holding non-state actors (e.g., private companies awarded public contracts) accountable to the public, involving specialised anti-corruption agencies, where necessary, and imposing financial sanctions on government actors for their corrupt practices.
7) Why do you think your framework would be attractive to judiciaries on the African continent when seeking to enforce socio-economic rights?
In my view, the trust-based framework should be attractive to judiciaries in Africa as it addresses the drawbacks of existing frameworks. Because trust focuses on procedure, the framework does not share the separation-of-powers and equity problems of frameworks that instead focus on outcome (e.g., the individualised enforcement model in Latin American jurisdictions). The framework also mitigates the vagueness problems of other procedural approaches to enforcement (e.g., reasonableness). Using the expectations of trust as the basis for a legal standard offers courts and policymakers concrete guidance that they can follow. And by institutionalising procedural remedies, it can do a lot to protect vulnerable groups.
I also think the trust-based framework fits well with the existing African socio-economic rights jurisprudence in such countries as Kenya, South Africa, and Uganda. The socio-economic rights jurisprudence in these jurisdictions, I think, already contains elements that align with a trust-based framework. Political trust helpfully brings these various elements together into a unified legal framework.
We would like to thank David for sharing these insights and core arguments from his book. His book can be purchased online at the following link or accessed online through a university library or database at https://www.cambridge.org/gb/universitypress/subjects/law/constitutional-and-administrative-law/trust-courts-and-social-rights-trust-based-framework-social-rights-enforcement?format=HB
