Table of Contents

Juridification and Social Citizenship in the Welfare State

Juridification and Social Citizenship in the Welfare State

Edited by Henriette Sinding Aasen, Siri Gloppen, Anne-Mette Magnussen and Even Nilssen

The concept of juridification refers to a diverse set of processes involving shifts towards more detailed legal regulation, regulations of new areas, and conflicts and problems increasingly being framed in legal and rights-oriented terms. This timely book questions the impact international and national regulations have upon vulnerable groups (the unemployed, patients, prisoners, immigrants, and others) in terms of inclusion, exclusion and social citizenship. Focusing on European welfare states, as well as lessons from Latin America, it considers the implementation of the right to health and the role of international courts. This book brings empirical analysis and multidisciplinary, comparative perspectives to the previously fragmented and largely theoretical debate on juridification in the welfare state.

Chapter 14: International courts, social rights and a dialogic approach to justice: experiences from Latin America

Roberto Gargarella

Subjects: law - academic, human rights, law and society, politics and public policy, european politics and policy, social policy and sociology, welfare states

Extract

In this chapter, I examine the increasingly influential role of international courts and their growing impact on the juridification of social relations and political disputes. In particular, I focus my analysis on the Inter-American Court of Human Rights (IACtHR), which since the end of the twentieth century has played a central role in the political and legal life of the region. The increasing influence of the IACtHR has substantially modified the legal organization of the entire region, forcing careful reflection on how to relate commitments to both the law and democracy. In this chapter, I reflect critically on this legal development and its implications in the context of democratic and pluralistic societies. I focus my study on the IACtHR’s recent jurisprudence on social rights. The intuition that drives my arguments is that motivated by an old, rather limited approach to the law. The IACtHR has been growing in influence in ways that have created unjustified tensions with local judicial and political institutions. In other words, the emergence of the IACtHR as a central legal actor has added new tensions between law and democracy to the existing ones. In my view, a different and more dialogic approach to the law on the part of the IACtHR (which would surely require some changes in the tribunal structure) would have reduced those tensions and would have been more respectful of the democratic expressions of American societies.

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