The Potential and Limits of an Equal Rights Paradigm in Addressing Poverty

• Jurisdiction: South Africa
• Date: 16 August 2019
• Pages: 566-590
• Author: Sandra Fredman
• Published date: 16 August 2019
• Citation: (2011) 22 Stell LR 566

566

THE POTENTIAL AND LIMITS OF AN EQUAL

RIGHTS PARADIGM IN ADDRESSING

POVERTY

Sandra Fredman

BA MA BCL FBA

Rhodes Professor of Law, Oxford University

Honorary Professor of Law, University of Cape Town*

1 Introduction

Poverty is i ncreasingly recognised as a human rights iss ue. As Paul Hunt,

previous Special Rapporteu r for Health, tellingly put it, “[h]uman rights

are not just about prisoners of conscience, they are also about prisoners of

poverty.”1 But how do we address poverty through human rights? The focus

of most of the pap ers in this issue is on socio-e conomic rights. The aim of

this paper is to con sider what role the right to equalit y can and should play in

relation to poverty. The right to equality is important for reasons wh ich are

both pragmatic a nd principled. While socio-economic r ights are still ght ing

for full recognition with in the huma n rights aren a, the right to equality has

an old and well established position. Indeed, i n jurisdictions without expre ss

socio-economic rights within their constit utional bills of rights, the right to

equality, together w ith rights to life and security, are potentially the primar y

vehicles for est ablishing a human rights approach to poverty. T hus Brodsky

and Day have forcefully argued that women’s right to equality brings with it a

justiciable right to income security.2 This makes it important on a pragmatic

level to explore the role of the right to equality in add ressing poverty.

This in turn requires a deeper unde rstanding of the relationship b etween

poverty and the t raditional constituency of equality r ights, namely inequality

on the grou nds of race, gender or othe r status. With the g rowing recogn ition

of the concent ration of poverty wit hin status group s has come an i ncreasing

overlap between the areas of concer ns of anti-poverty policy and equality

law. Researcher s and policy-makers c ontinue to wr estle with the ext ent to

which inequality should be part of the denition and measurement of poverty.

Equally contested is t he question of whether equality should be the desired

outcome of anti-poverty measu res, and if so, what t his would entail. At the

same time, deepening understandings of substantive equality have il luminated

the continuities between “status” inequ alities (or inequalities on the grounds

* I am grateful to the anonymou s reviewers for t heir very helpf ul comments a nd to Laura Hi lly and Chri s

McConnach ie for their research a ssistance in the f inal draf t of this paper

1 P Hunt “ Statement to the Panel on Materna l Mortal ity and the Hu man Rig hts of Women” (2008) UN

Human R ights Counc il 1

aspx> (accessed 11-11-2011)

2 G Brodsky & S Day “Be yond the Soci al and Eco nomic Rights Debate: Subst antive Equa lity Speak s to

Poverty” (2002) 14 Canad ian J of Women & L 185 189

(2011) 22 Stell LR 566

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of race, gender, disabilit y, et cetera) and povert y. Groups which suf fer from

discrimi nation on st atus ground s are d isproportionately repres ented among

people living in pover ty. Conversely, people living in poverty experience many

of the elements of discrimination experienced by status groups, including lack

of recognition, social exclusion and reduced political pa rticipation.

The paper beg ins by considering the relationsh ips between poverty and

inequality, rstly from the perspective of distributive inequalities, and then

from the p erspective of status i nequality or discrim ination. In the thi rd part,

I briey sketch an analytic fr amework within which both poverty and stat us

inequality might be located. I n the fourth part, I consider how a right to

equality might f unction in order to contribute towards a ddressing povert y,

drawing on the experience in four English spe aking jurisdictions: Britain, the

US, Canada and South Africa. Always bearing in mind the need t o be sensitive

to legal and social differences between countries, the paper focuses on three

approaches wh ich have been attempted in these jur isdictions. The  rst is to

include pover ty as a protected cha racteristic or a ground of discrimin ation.

Secondly, the right t o equality can be used to challenge tho se anti-poverty

measures which are under-inclusive in that they exclude st atus groups (such

as same-sex par tners, Gypsies and Travellers, or asylum-seekers) or entrench

status inequalities (for example by constructing women as dependants). The

third a rises in relation to “fourth generation” or proactive understandi ngs of

equality, which recognise that human rights a re not merely about refraining

from discrimination, but also include a positive duty to address inequality.

The strong correlation between status inequal ity and poverty means that

positive duties to add ress status inequality b ring with them a duty to a ddress

the distributive disa dvantage attached to status.

The paper concludes that viewing poverty through the lens of substantive

equality allows u s to illuminate the ways in which poverty, like stat us

discrimi nation, generates stigma, social exclusion and loss of autonomy. It

also demonstrates t hat a genuine commitment to addressi ng status inequality

necessarily entails addressing the poverty and economic disadvant age that

have re sulted from structur al discrim ination against women, black people,

people w ith disabilities and othe r status groups. T his in turn suggests that

the r ight to equality ca n have import ant traction in the eld of poverty a nd

distributive inequality. However, in the jurisdictions examined here, there

remains a deep reluctance to regard the right to equality as generating social

rights in its own right. The resu lt is that while the right to equality pote ntially

makes a valuable contribution to aspect s of poverty based on mis-recogn ition

and social and political exclusion, it has not yet been sufciently developed

to addre ss distributive inequa lities in its own right. The alliance with socio-

economic rights, as is the case in South Africa, is more likely to yield progress

on both redistr ibutive and recognition front s.

2 Poverty and inequality

The relationship between poverty and inequ ality is complex and

contested. There a re several dimensions to this debate. The r st concerns the

AN EQUAL RIGHTS PARADIGM IN ADDRESSING POVERTY567

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