Formal Rights, Informal Foundations: Movements and the Boundaries of Citizenship

• In Event: Social Policy and Social Spending in Comparative Perspective

Abstract

Why do some legal rights have de facto standing while others do not? In the wake of the 3rd wave of democratic transitions across the African continent, many nations adopted constitutions with social rights that exist formally, yet have rarely been upheld or challenged in practice. One might think this problem is simply a proxy for regime type. Presumably, strong democratic regimes uphold rights and provide recourse when rights are violated, while weak, or non-democratic, regimes do not. Yet even within established democratic regimes, the application and access to basic social rights is often uneven. So why are some formal rights respected and upheld by the state while others are seemingly neglected?
In this paper we look at the case of South Africa, which since the late 1990s has boasted one of the most progressive constitutions, particularly for social rights. Yet while some formal rights, such as housing, are deeply contested and legally upheld, others, such as rights to food and food security are often overlooked or simply not upheld by the state (a fact demonstrated most clearly during the recent COVID-19 pandemic).
Using interviews with state officials, citizens, activists, and NGOs, we argue that a key distinction is the role of social movements. In this sense, movements and contentious politics play an important role not only in upholding existing rights, but historically in establishing the de facto foundations of citizenship. In other words, the strength of rights may rely as much on the history of informal contentious politics as it does on the formal content of the constitution.

Author

• Marcus Walton, Boston University