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LEGAL MOBILIZATION for SOCIAL RIGHTS a Dissertation Presented to the Faculty of the Graduate Sc CREATING A SENSE OF OBLIGATION: LEGAL MOBILIZATION FOR SOCIAL RIGHTS A Dissertation Presented to the Faculty of the Graduate School of Cornell University In Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy by Whitney Katherine Taylor May 2019 © 2019 Whitney Katherine Taylor CREATING A SENSE OF OBLIGATION: LEGAL MOBILIZATION FOR SOCIAL RIGHTS Whitney Katherine Taylor, Ph. D. Cornell University 2019 How and why does legal mobilization for social rights emerge? What explains variation in legal mobilization for social rights in terms of who makes claims and on which issues? Leveraging comparisons within and across cases, I investigate legal mobilization for social rights in two social constitutionalist countries, Colombia and South Africa. In Colombia, legal claims to the right to health have become ubiquitous, yet relatively few housing rights claims have emerged. In South Africa, on the other hand, legal claims to the right to health have been rather limited, focusing on HIV/AIDS related issues, while claims to the right to housing predominate. Existing theories of legal mobilization rest on implicit claims about subjective beliefs and tend to examine only one part of legal mobilization, segmenting off the process by which grievances develop from the process by which claims advance through the courts from the process by which judges render their decisions. In contrast, this dissertation develops a constructivist account of legal mobilization, explicating the central role of beliefs and unearthing the importance of repeated interaction between claimants, activists, lawyers, and judges for both the filing of rights claims and the official response to those claims. Legal mobilization for social rights represents a new phenomenon, wherein both ordinary citizens and judicial actors have come to view problems related to access to healthcare, housing, social security, and education through the lens of the law, in effect pushing the question of social incorporation into the formal legal sphere. The goal of ensuring that each and every Colombian and South African is able to live a life of dignity remains unmet, but the legal recognition of social rights in both countries has empowered citizens to advance rights claims to the goods and services necessary for a good life. This dissertation investigates the changes in beliefs and institutions that allowed for this kind of claims-making to emerge, and it considers the manifold consequences of this kind of claims-making for state-society relations, access to social welfare, and the judicialization of politics. For my parents, Elizabeth A. Taylor and Philip H. Taylor v ACKNOWLEDGMENTS I am immensely grateful for the support and encouragement of so many mentors, colleagues, and friends throughout my time in graduate school. Thank you to my dissertation committee – Ken Roberts, Matt Evangelista, Sid Tarrow, Lisa Hilbink, and Aziz Rana – who have been, without exception, generous with their time and unwavering in their support. Ken’s ability to take your loose series of thoughts and pull out something that is not only intelligible but exactly what you meant is unrivalled and has benefitted just about every comparativist at Cornell. I am grateful also for Ken’s guidance in connecting my work to broader debates in comparative politics. Matt reads more carefully than anyone I have ever met – as far as I can tell, he has never missed a typo. His engagement with my work has always been thoughtful and thought-provoking. Sid’s high standards pushed me to continually strive to be more precise in my claims and more rigorous in my methods. He models what it looks like to generously support colleagues and to cultivate networks across disciplines and continents. Thank you also to Lisa, who has always believed in me and who has never shied away from telling me when I could do better. Her expertise and encouragement have been invaluable. Aziz’s excitement, curiosity, and ability to see the hidden linkages between events, texts, and ideas have inspired me, and discussions with him dramatically enhanced the project. Thank you to Jamila Michener, who graciously agreed to serve as my outside reader. She provided sharp, thoughtful feedback throughout the development of the project and has always been quick with a smile and supportive words. Her vi commitment to amplifying the voices of those who are often overlooked in political science and to unearthing the real-life consequences of what may seem like technical policy choices make her a scholar-citizen who I hope to emulate. Thank you also to Joe Margulies, who read early drafts of chapters and has offered a clear example of what it means to be an engaged teacher, researcher, and community member. Jamila and Joe both took the time to attend my practice job talk, and their comments not only improved the talk itself but also my whole dissertation project. Tina Slater, Laurie Dorsey, Danielle O’Connor, Jerrica Brown, and Dinnie Sloman provided priceless help navigating deadlines, procedures, and bureaucracies. Their kindness and dedication are a large part of what makes the Government Department at Cornell such a great place to study. I cannot thank my graduate school friends and colleagues enough. I was blessed with a wonderful cohort, made up of people who are both intellectually curious and genuinely nice. In particular, I am grateful to have taken classes and developed projects with David De Micheli and Michael Allen. David and Michael have been not only great friends, but also amazing teachers. Liz Acorn was the first person I met in Ithaca. Her thoughtfulness and generosity are qualities I deeply admire. She also provided a much-needed example of how to take work seriously but not get lost in the process. Liz, David, Michael, and I formed “the working group,” and collectively we read draft after draft of each other’s dissertation chapters. Their close reading and comments strengthened my project and saved me from several embarrassing oversights. Janice Gallagher’s enthusiasm for life and commitment to telling the stories of the people who comprise political struggles (and, more vii importantly, her commitment to those people and those struggles) has inspired me throughout graduate school. Our conversations across Ithaca, New Orleans, Mexico City, Medellín, and New York City have both enriched and grounded my research. I was lucky that my fieldwork in Colombia partially overlapped with Bridget Marchesi’s. Her critical eye and pragmatic approach greatly improved my project. Thank you also to Martha Wilfahrt and Natalie Letsa, who offered advice and friendship, and shared tips and materials for navigating the job market. Janet Smith has been a consummate cheerleader and friend, reminding me to take breaks and enjoy the best of Ithaca all year round. Our bike rides kept me more or less sane throughout this last year. Emilio Lehoucq made sure that I not only worked during my fieldwork in Bogotá, but also had fun. He has read almost everything I’ve ever written and has provided timely, thoughtful feedback and encouragement, no matter how busy he was. I am lucky to be able to work with him, but even luckier to call him a friend. Finally, I am grateful for Cait Mastroe, Aditi Sahasrabuddhe, Alex Dyzenhaus, Cameron Mailhot, Lindsey Pruett, Jimena Valdez, Julie George, Julius Lagodny, Jake Swanson, Nazli Konya, Angie Torres, and the other members of the Government Department who came to talks, read drafts, and gave words of encouragement. A heartfelt thank you as well to the wonderful people I worked with and asked questions of in both Colombia and South Africa, including Pastora and Leo, who welcomed me into their home; Zeller and his team of student-enumerators, who made survey work fly by; Fernanda, who encouraged me to think more critically about the dualities and contradictions present in Colombian life and law; and the members of Abahlali baseMjondolo, who invited me to their neighborhoods, meetings, and viii funerals, and reminded me of the awesome power of people who follow their convictions. I am grateful for the support of many undergraduate mentors and friends as well. Barb Frey took a chance on me as a sophomore and introduced me to the vibrant intellectual community of the Human Rights Program and Institute for Global Studies at the University of Minnesota. Tade Okediji has been a relentless supporter from the moment I met him. Danielle Dadras offered advice, encouragement, and plenty of laughs as I set off for graduate school. Hollie Nyseth Brehm and Wahutu Siguru simultaneously served as academic models, colleagues, and friends. Raven Johnson has been a caring friend since the beginning of college, and she remains an endless source of love and support from afar. Thank you to Kathryn Sikkink, Joachim Savelsberg, and Lisa Hilbink for giving me the opportunity to not only to imagine but to experience a taste of graduate school while an undergraduate student. Their three classes remain the ones from which I learned the most. I am especially thankful for Kathryn, who asked not if I was considering graduate school, but when I was going to ask her for a letter of recommendation, and Lisa, who entertained my countless trips to her office, where I started to ask the half-baked questions that form the basis of this dissertation, and who has stuck with me and the project ever since. Finally, thank you to my parents. Their unshakable faith in my abilities and their unconditional love has made this all possible. ix x TABLE OF CONTENTS List of Figures p. viii List of Tables p. ix Chapter 1. Introduction p. 1 Chapter 2. On Law, Beliefs, and Change p. 32 Chapter 3. The Historical Development of Constitutional Law p. 67 Chapter 4. Critical Junctures and the Embedding of Social Constitutionalism p.
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