by Aoife Nolan. Oxford: Hart Publishing, 2011. 336 pp. Cloth $110.00. ISBN: 1841137693.Reviewed by Alice Hearst, Department of Government, Smith College. Email: ahearst [at] smith.edu.
pp.166-69
In Children's Socio-Economic Rights, Democracy, and the Courts, Aoife Nolan offers a densely argued defense of judicial involvement in the enforcement of children’s socio-economic rights. Nolan, a senior lecturer in law at Durham University in the UK, delves deeply into the objections most frequently voiced when courts take an active role in enforcing socio-economic rights: that such rights are too indeterminate or are too polycentric to be resolved by judges; that judicial action in this arena violates separation of powers principles central to institutional integrity and reflects the worst kind of counter-majoritarian excess; and that, even if those objections can be overcome, judicial actions are likely to be inefficient or counterproductive to children’s interests.
Children, Nolan points out, “are disproportionately represented amongst the poor, whether such poverty is defined in absolute, relative or other terms” (p.xxvii), with permanent effects on children’s life chances. Socio-economic rights, she argues, offer one of the few avenues out of such poverty, as only those rights can increase children’s access to health care, education and other resources. When the Convention on the Rights of the Child shifted the discourse about children’s welfare from one of charity to rights, the possibilities for elevating children’s concerns seemed to offer hope for concrete action. However, because children have no effective voice in democratic politics, the vindication of their rights through traditional channels is not likely to occur, Nolan argues, with the result that courts must be willing to enter the fray. Nolan does not argue that courts are the best suited among state actors to further children’s socio-economic rights. Rather, she argues that judicial action is justifiable when other institutions fail to respect or enforce such rights.
Nolan’s discussion of children’s unique disempowerment in a democracy in Chapter Two is enlightening. As she points out, the assumption that children’s interests are inevitably represented by parents or other actors is simply untenable. While protecting children’s interests is often a good rhetorical strategy for elected officials, those interests are likely to fall by the wayside if and when they conflict with claims asserted by other groups, especially when those groups have the ability, denied to children, to vote. Moreover, elected officials will tend to privilege the interests of some children over others – they are particularly unlikely to support programs for children who are viewed as potentially disruptive of mainstream values.
Parents do not necessarily advance children’s rights, either. While parents [*167] typically do try to protect their children’s interests, they may not do so consistently. Parents (and other adult actors) have an interest in perpetuating their own privileged status, and are unlikely to support programs that may work to their own disadvantage. They may also, like elected officials, be averse to programs that benefit all children, placing their own children’s interests against those of other people’s children. Other adult actors who specifically assert children’s interests, such as NGOs working on behalf of children, may not listen to the children they purport to represent, or may be selective in the issues they are willing to put forward. Even where children have been granted various forms of participation rights, their disenfranchisement means that there are no guarantees that their interests or views will be acted upon. In short, virtual representation of children’s interests is likely to fall far short of delivering on promises of social and economic security.
Chapters Three and Four consist of a lengthy rebuttal to the argument that judicial enforcement of children’s rights amounts is undemocratic because of the counter-majoritarian difficulty, or inappropriate because of separation of powers concerns. The first objection – that judicial actions in the area of children’s rights violate the premise that major decisions in a democracy should be made by elected officials – has particular salience in evaluating judicial action on children’s socio-economic rights claims. As Nolan notes, court rulings in this area must often go beyond traditional remedies to “outline a positive obligation on the state and set out steps that the state must take in order to fulfill that obligation” (p.98), which means that charges of counter-majoritarianism must be fully rebutted.
Nolan asserts that, for the most part, the articulation of children’s socio-economic rights is uncontroversial in most liberal democracies; in fact, “their realisation is desireable…. In practice [however] disagreement about children’s … rights tends to arise at the juncture when it is necessary to delineate the precise implications of such rights; that is, when discussion turns to what obligations they give rise to and how such rights should be applied” (p.106). Judicial action is most likely to arise, she argues, when states have failed to protect children’s rights because of both institutional incompetence and an unwillingness to take children’s rights seriously, rather than because there is a good faith disagreement over social values; only the latter is a valid objection to judicial action. As she notes, “courts do not act in an unacceptably counter-majoritarian way in telling the legislature to act in relation to rights (about whose existence there is no disagreement in society)….” (p.115).
Indeed, Nolan argues, counter-majoritarian objections to judicial action on children’s socio-economic rights “have to be considered in a different light where the courts are acting in a vacuum in which the elected organs of government are not giving effect to the will of the majority who voted for them” (p.117). Moreover, because children’s interests are unlikely to be well-represented through other actors in the democratic process, courts must act on their behalf as part of their obligation to ensure that minority voices are heard in democratic societies:[*168]
“Taking into account the lack of representation of children and their interests in democracy, under a more nuanced, representation-reinforcing theory of judicial review that incorporates a deeper understanding of the impact of the structural inequality, social and democratic vulnerability and the de facto (if not prejudice motivated) non-representation of children, the courts may well be entitled to intervene…” (p. 131).
Because children are effectively outside of democratic institutions, the concerns about self-government lying at the heart of the counter-majoritarian objection simply do not apply.
Nolan also puts paid to arguments that because judicial actions regarding children’s socio-economic rights typically require courts to take an active role in shaping policies that affect children, their actions violate constitutional injunctions concerning separation of powers. As she notes, these concerns center both upon the nature of socio-economic rights themselves and the kinds of relief, such as mandatory orders, that courts must grant. Given that children’s socio-economic rights are constitutionally articulated in most contemporary democracies, she argues, courts should not shy away from enforcing such rights simply because of separation of powers concerns. Concerns about institutional power should, she argues, give way to concerns about vindicating constitutional rights themselves, especially as the vast majority of violations of children’s rights turn on state inaction rather than action. Nolan takes the position that “the identification of specific obligations is better regarded as part of judicial interpretation of the law rather than as judges making law….” (p.159).
The question of remedies is more problematic, but does not provide a water-tight argument precluding judicial action. Adjudication over civil and political rights has often required courts to issue orders that affect resource allocation as necessary to effectively enforce such rights; the mere fact that the rights involved are socio-economic in nature does not, therefore, make the fashioning of remedies more problematic. The real question, Nolan asserts, is not ‘may’ courts act – they may, she says – but whether they ‘ought’ to do so, which she takes up in Chapter Five.
She argues in that section of her analysis that courts can fairly easily meet the typical objections of institutional incapacity: courts have powers to remedy any information deficits in order to understand how to vindicate socio-economic rights and they can often avail themselves of expert information as necessary to respond to questions raised in these cases. Perhaps more importantly, litigation around rights of any sort typically raises problems of polycentricism, and there is little reason to believe that courts cannot recognize those problems and fashion appropriate remedies as they have done in other classes of cases. In addition, courts have broad discretion to shape remedies to ensure implementation of their orders. In short, the potential problems raised by judicial involvement in defining and enforcing children’s rights is offset by [*169] the harm that ensues when courts simply refuse to address rights issues altogether. As Nolan argues,
where no one else fulfills the function [of vindicating children’s rights], will the court do the job so badly that it is better to let the breakdown continue rather than suffer judicial intervention in a desperate last resort?...[I]t seems extremely unlikely that no action should be preferable to judicial action where the constitutional violations at issue are severe, and, in the absence of judicial intervention, are unlikely to be remedied....Ultimately, judicial deference to the elected branches of government on the basis of alleged ‘institutional incapacity’ will result in the devaluation of the right at issue. (p.210)
Nolan is quick to point out that judicial intervention is not a panacea. In fact, her ultimate point is a fairly limited, but important, one: “Where … the legislative and executive fail to fulfill their obligation to guarantee children’s constitutional socio-economic rights, it cannot be argued that there is no role for the courts to play” (p.259).
In reaching this conclusion, Nolan leaves no challenge untreated. That fact means that the book is sometimes opaque, but in dismantling virtually every objection to judicial action on children’s socio-economic rights, her argument emerges fully intact. That is a boon for children’s rights everywhere. The book will be welcomed by scholars specializing in children’s rights, as well as scholars interested in the literature on judicial capacity.
© Copyright 2012 by the author, Alice Hearst.
