Courts in emerging markets are better for the poor than many assume;

In December India's cabinet approved a “right to food” bill that would give two-thirds of the population a right—supposedly enforceable in law—to cheap food. Parliament must still give its approval, but the idea is part of a trend. Indian law already promises the right to education, health and paid work. And India is one of many countries that incorporate social and economic rights into their constitutions, and use the courts to enforce those rights. Indonesia's Constitutional Court issued rulings in 2004-06 requiring the government to boost education spending. South Africa's highest court obliged a reluctant president, Thabo Mbeki, to launch various anti-HIV/AIDS programmes.

Using the law as an instrument of social policy might seem perverse. Until now the balance of academic opinion has been that the courts do little to help the poor. In theory, the law is not supposed to discriminate in anyone's favour. In practice, the rich tend to do well in the courts because the poor cannot afford to go to law themselves (they rely on cases brought by others); because the law is said to favour property owners; and because, as Anatole France, a French novelist, sardonically put it, “The majestic equality of the laws prohibits the rich and the poor alike from sleeping under bridges, begging in the streets and stealing bread.”

But a new study, by Daniel Brinks of the University of Texas at Austin and Varun Gauri of the World Bank, takes issue with this view. The law's record, they argue, is mixed: pro-poor in some countries, regressive in others. But on balance it is much better for the poor than conventional wisdom suggests.

The authors argue there are three kinds of legal case. Some involve regulation, some obligation, some provision. Regulation cases force a government to change the rules to improve access to a basic right. Obligation cases change the behaviour of those obliged to give a rights-based service (for example, by spelling out what rights patients have to information about medical treatment). Provision cases demand some new good or service (for example, does the law require the state to give AIDS drugs to HIV-positive prisoners?). Regulation cases offer most hope for the poor, the authors reckon, because the benefits are universal. Obligation cases are least likely to help, because rulings usually affect only those who already receive a service. With provision cases, it depends on how broad a ruling's application may be.

The authors then look at five countries, all emerging markets but with different levels of income, different legal traditions (some common law, some civil code) and different histories of using the law for social policy. They calculate what proportion of the benefits resulting from legal judgments under rights-based laws go to the poorest 40% of the population in each country.

India, they find, has been most successful by this measure. Its courts are the most likely to take up regulation cases which raise broad policy issues. The authors reckon Indian rulings have pushed up first-grade enrolment of girls by 10% a year, bringing 7m children into school-feeding programmes. Despite serious problems with enforcement, 84% of the benefits of relevant rulings, they think, have gone to the poorest two–fifths. South Africa also uses regulation cases extensively. Here, the poor received three-quarters of the benefits of legal rulings on health and 100% of the gains from education rulings.

Brazilian courts, unlike their Indian and South African peers, rarely consider suits with broad implications. Instead, they take on individual provision cases. But they hear so many—40,000 claims a year about providing medicines, for example—that their rulings have sweeping implications. Experts have long assumed that such rulings seldom help the poor, because the benefits are restricted to the plaintiffs, who are likely to be well-off. But the authors point out that after a string of losses in court, the government bodies that deliver subsidised medicine changed their behaviour, making the stuff more easily available. By the authors' calculations, 36% of the benefits from medical cases in Brazil go to the poorest 40%—ie, they are marginally regressive.

Compared with India, Brazil and South Africa, Indonesia has had few court cases on broad social matters. Among those few are the rulings which pushed education spending up dramatically. But since state education in Indonesia tends to help the middle class most, the effect was still mildly regressive: 36% of the benefits went to the two poorest quintiles. Even that was better than in Nigeria where, the authors reckon, three-quarters of the benefits were captured by the rich. This was partly because many Nigerian cases concerned universities (one suit, for example, looked at whether people had a right to establish private ones).

Majestic results

So the empirical evidence is mixed. But it does not support the view that the law is an elite game, fixed to serve the interests of the rich and educated. When the authors aggregate their national studies, they conclude that 55% of the benefits that flow from the various legal decisions accrue to the poorest 40%. Such calculations are, inevitably, rough and ready. Ideally, one should compare the costs and benefits of going to law with those of pursuing the same policy objectives in parliament—which is hard to measure. It is also an open question whether a “right to food”—ie, an obligation for someone else to provide it—is the best way to help the poor. A targeted cash-transfer programme, which makes welfare payments conditional on recipients' actions, may work better. More broadly, it is far from clear that society as whole benefits when unelected judges mandate potentially costly social spending. That said, the study is still a revelation: courts are more majestic than decades of received wisdom have suggested.