realization of economic and social rights, that they are least able to bring about the kind of social
change that would truly benefit the disempowered and the marginalized. For, much as it is difficult
for courts to impose that a State discharges "positive duties" towards its population where such
obligations are based only on certain vague provisions of the constitution or found in international
law, it is more easily accepted that they intervene to protect existing entitlements, or that they
impose "negative duties" to refrain from diminishing existing levels of enjoyment of rights. It is
significant in this regard that many examples of successful judicial application of economic and social
rights relate to situations where the domestic lawgiver had adopted statutes implementing such
rights, that courts simply contributed to enforce (as also remarked by Viljoen (2005): 6‐9, and by
Coomans (2006): 7‐8). However, Landau asserts, it is precisely then ‐‐ when they act to preserve the
droits acquis or the entitlements that individuals already enjoy, as it were ‐‐ that the courts
contribute the least to strengthening the position of the most powerless, because the poorest among
the poor simply have no entitlements to be protected. Only more structural forms of judicial
intervention would actually benefit low‐income groups, and this, says Landau, requires different
forms of adjudication than those that courts enforcing social rights usually resort to.
Following his review of the various legal techniques used by courts to enforce social rights, Landau
concludes, thus, that the more a court seeks to preserve its legitimacy and to remain within the
boundaries of its capacity, the less it is capable to deliver the kind of social change that the poor
require. This claim is a powerful one, but it should not be left unchallenged. One response is to point
to situations where, in fact, courts have intervened with a high degree of legitimacy, yet did play a
transformative role. This arguably may be the case in the right to food case launched before the
Supreme Court of India with the People’s Union for Civil Liberties v. Union of India & Others petition
presented in 2001. The case led since the Court to issue a large number of judicial orders,
implemented under the supervision of two "Commissioners of the Court" especially appointed by the
Court itself (Birchfield and Corsi (2010)). Confirming the remark by Langford that social movements
providing support "from below" to the efforts to enforce economic and social rights are an important
ingredient in litigation, a "right to food campaign" of civil society accompanied the case and
contributed to a largely decentralized effort to monitor compliance with the judicial orders.
Landau sees this case as a relative success. Indeed, by transforming a range of social programmes,
eight in total, that governments are now prohibited from reversing, the Supreme Court of India not
only established a link between the constitutionally recognized right to life and specific measures
that were not initially seen as implementing a constitutional mandate ; it also significantly
strengthened the effectiveness of the programmes concerned and their ability to reach all those in
need of support. But Landau interprets such a success as having been possible because "the court
had strong and unified support from civil society, and the court rebuked the government by taking a
moral stance that the government could not easily oppose"; this in his view "suggests [...] that courts
might be better at building new public policies than at attempting to work within already established
and entrenched policies and bureaucracies", as doing the latter would per necessity be fruitless and
result in a waste of judicial efforts (Landau (2012): 237 (Chapter 6)). However, whether qualified or
not, the success of the right to food case could also lead to the exact opposite conclusion: that,
under certain conditions, there is no tradeoff between a court acting with legitimacy and remaining
within its capacity, and being an effective agent of social transformation. This, after all, was a
transformative case, significantly expanding for instance the provision of midday school meals for
children across the country, yet is was based on guaranteeing entitlements already set forth in
various state laws ‐‐ only to ensure that all, the poor in particular, would be able to benefit.
As illustrated by the five contributions forming Part III of this volume, most authors seek to defend
the justiciability of economic and social rights by asserting that the content of the requirements of
such rights can be ascertained by various legal techniques. But another set of responses both to
Landau and to the sceptical views expressed about the enforcement by courts of social and economic
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CRIDHO‐WP‐2013/2: O. De Schutter – Economic,Social and Cultural Rights as Human Rights: An Introduction