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Democratic Constitutions, Poverty and Economic Inequality: Redress Through the Fourth Branch Institutions?

Published online by Cambridge University Press:  01 January 2025

Rosalind Dixon Open the ORCID record for Rosalind Dixon [Opens in a new window]  and
Mark Tushnet
Rosalind Dixon
Affiliation:
University of New South Wales
Mark Tushnet
Affiliation:
Harvard University
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Abstract

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Type
Special Issue: Inequality and Public Law (Part I)
Information
Federal Law Review , Volume 51 , Issue 3: Special Issue: Inequality and Public Law (Part I) , September 2023 , pp. 285 - 295
Copyright
Copyright © 2023 The Author(s)

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References

1. We note the existence of a philosophical literature raising the question: why if at all is inequality as such a matter of concern? If everyone has adequate material provision (ie, if poverty has disappeared), why should we be concerned that some have much more than others?

2. Ran Hirschl, Comparative Matters: The Renaissance of Comparative Constitutional Law (Oxford University Press, 2014). On how it may be applied in practice, cf Rosalind Dixon, How to Compare Constitutionally: An Essay in Honour of Mark Tushnet (Research Paper No 21, Faculty of Law, University of New South Wales, May 2020).

3. Cf the work of Maldonado, Dunn and others. See, eg, Daniel Eduardo Bonilla Maldonado, Legal Barbarians: Identity, Modern Comparative Law and the Global South (Cambridge University Press, 2021).

4. Felix Frankfuter, The Public and Its Governance (Yale University Press, 1930); James M Landis, The Administrative Process (Yale University Press, 1938).

5. For a recent overview and attempt to provide a general theoretical account of constitutionalised fourth branch institutions, see Mark Tushnet, The New Fourth Branch: Institutions for Protecting Constitutional Democracy (Cambridge University Press, 2021).

6. Cf Mark Tushnet and Bojan Bugarič, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press, forthcoming).

7. Rosalind Dixon, ‘The Core Case for Weak-Form Judicial Review’ (2017) 38(6) Cardozo Law Review 2193; Rosalind Dixon, Responsive Judicial Review: Democracy and Dysfunction in the Modern Age (Oxford University Press, forthcoming).

8. Lon L Fuller, ‘The Forms and Limits of Adjudication’ (1978) 92(2) Harvard Law Review 353, 401.

9. In holding that the President (and implicitly the legislature) had to comply with what were nominally recommendations made by the nation’s Ombudsperson, the South African Constitutional Court referred to art 181, § 3 (‘Other organs of state, through legislative and other measures, must assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions’): Economic Freedom Fighters v Speaker of the National Assembly; Democratic Alliance v Speaker of the National Assembly [2016] ZACC 11. It would not be difficult to extend this holding so as to require adequate funding for the Ombudsperson and other offices.

10. See Child Poverty (Scotland) Act 2017 (UK) (Child Poverty Act).

11. Some statutory agencies in the United States have been abolished when, it was thought, their missions had been accomplished. They include the Interstate Commerce Commission, created in 1887 and abolished in 1996 (replaced by a body with a substantially more limited remit), and the Atomic Energy Commission, created in 194 and abolished in 1975, with its functions dispersed into other agencies.

12. See, eg, Dixon and Lavery, ‘Commissioning Economic Equality? Lessons from Scotland’ (2023) 51(3) Federal Law Review, 333.

13. See, eg, Sandra Liebenberg and Bradley Slade, ‘Applying a Human Rights Lens to Poverty and Economic Inequality: The Experience of the South African Human Rights Commission’ (2023) 51(3) Federal Law Review 296, and the upcoming article by Raymond A Atuguba and Katharine G Young, ‘Developmental Constitutionalism and the Fourth Branch: Ghana’s Independent Constitutional Bodies and the Redress of Poverty and Inequality’ (2023) 51(4) Federal Law Review.

14. Eric A Posner, Kathryn E Spier and Adrian Vermeule, ‘Divide and Conquer’ (Law and Economics Working Paper No 467, Coase-Sandor Institute for Law and Economics, University of Chicago Law School, 2009).

15. This, for example, would seem one potential danger to the Kenyan individual complaint system.

16. See Katharine G Young, The Future of Economic and Social Rights (Cambridge University Press, 2019); Katharine G Young, ‘The Right-Remedy Gap in Economic and Social Rights Adjudication: Holism versus Separability’ (2019) 69(1) University of Toronto Law Journal 124. See also Rosalind Dixon, ‘On Law and Economic Inequality: A Response to Philip Alston’ 24 Australian Journal of Human Rights 276.

17. See, eg, Rosalind Dixon, ‘Creating Dialogue about Socioeconomic Rights: Strong-Form versus Weak-Form Judicial Review Revisited’ 5(3) International Journal of Constitutional Law 391; Rosalind Dixon and David Landau, ‘Competitive Democracy and the Constitutional Minimum Core’ in Tom Ginsburg and Aziz Hug (eds), Assessing Constitutional Performance (Cambridge University Press, 2016) 268.

18. Cf Samuel Moyn, Not Enough: Human Rights in an Unequal World (Harvard University Press, 2019).

19. Lee Epstein, Jack Knight and Olga Shvetsova, ‘The Role of Constitutional Courts in the Establishment and Maintenance of Democratic Systems of Government’ (2001) 35(1) Law and Society Review 117.

20. See, eg, Charles R Epp The Rights Revolution: Lawyers, Activists and Supreme Courts in Comparative Perspective (University of Chicago Press, 1998). Cf also Rosalind Dixon and Rishad Chowdhury, ‘A Case for Qualified Hope? The Supreme Court of India and the Midday Meal Decision’ in Gerald N Rosenberg, Sudhir Krishnaswamy and Shishir Bail (eds), A Qualified Hope: The Indian Supreme Court and Progressive Social Change (Cambridge University Press, 2019) 243.

21. See, eg, Heinz Klug, ‘Corruption, the Rule of Law and the Role of Independent Institutions’ in Rosalind Dixon and Theunis Roux (eds) Constitutional Triumphs, Constitutional Disappointments: A Critical Assessment of the 1996 South African Constitution’s Local and International Influence (Cambridge University Press, 2018) 108.

22. Sara Jerving, ‘Legal Limbo Leaves Kenya Civil Society Vulnerable to Targeting’, Devex (online, 11 October 2017) <https://www.devex.com/news/legal-limbo-leaves-kenya-civil-society-vulnerable-to-targeting-91059>; Mark P Lagon and Eleanor Dickinson, ‘When Civil Society Is Attacked, Kenya’s Democracy is Imperiled’ Freedom House (Web Page, 8 January 2016) <https://freedomhouse.org/article/when-civil-society-attacked-kenyas-democracy-imperiled>.

23. See Victoria Miyandazi, Equality in Kenya’s 2010 Constitution: Understanding the Competing and Interrelated Concepts (Bloomsbury, 2021).

24. Studies of anti-corruption efforts, sometimes lodged in fourth branch institutions, emphasise the importance of leadership. See, eg, Robert I Rotberg, ‘Accomplishing Anticorruption: Propositions & Methods’ (2018) 147(3) Daedalus 5.

25. Jacob Zuma’s experience with two successive Ombudspersons illustrates this. Both were, he believed, reliably members of his faction within the African National Congress; one turned out to take her job seriously, in part because of her deep religious convictions, and took actions that ultimately forced Zuma out of office; the other used the power of her office to go after Zuma’s factional enemies. For a discussion, see Mark Tushnet, The New Fourth Branch: Institutions for Protecting Constitutional Democracy (Cambridge University Press, 2021) 173–5.

26. Principles relating to the Status of National Institutions (The Paris Principles) GA Res 48/134, UN GAOR, 3rd Comm, 48th sess, Agenda Item 114(b), UN Doc A/RES/148/134 (4 March 1994).

27. See ‘Home’, Global Alliance of National Human Rights Institutions (Web Page) <https://ganhri.org>.

28. See ‘What are Human Rights?’, Australian Human Rights Commission (Web Page) <https://humanrights.gov.au/about/what-are-human-rights>.

29. See Rosalind Dixon and David Landau, Abusive Constitutional Borrowing: Legal Globalization and the Subversion of Liberal Democracy (Oxford University Press, 2021).