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The potential and limits of an equal rights paradigm in addressing poverty

  • Journal Title: Stellenbosch Law Review = Stellenbosch Regstydskrif
  • Volume: Volume 22
  • Issue:  Issue 3
  • Publication Date: 2011
  • Pages: 566  - 590
  • Authors:  Sandra Fredman;
  • ISSN: 10164359
  • Abstract:  The aim of this paper is to consider what role the right to equality can and should play in relation to poverty. Unlike socio-economic rights, which are still fighting for full recognition within the human rights arena, the right to equality is well established and could therefore be a primary vehicle for establishing a human rights approach to poverty. This in turn requires a deeper understanding of the relationship between poverty and the traditional constituency of equality rights, namely inequality on the grounds of race, gender or other status. The first part of the paper examines the relationships between poverty and inequality first from the perspective of distributive inequality and then from that of status inequality. While the relationship between poverty and distributive inequality remains contested, deepening understandings of substantive equality have illuminated the continuities between status inequalities and poverty. The paper then develops an analytic framework within which both poverty and status inequality might be located. In the last section, drawing on the experience in Britain, the US, Canada, and South Africa, the paper considers three possible ways in which a right to equality could function in relation to poverty: including poverty as a ground of discrimination; using equality to challenge under-inclusive or discriminatory anti-poverty measures; and "fourth generation" models of equality, which include positive duties. It concludes that viewing poverty through the lens of substantive equality allows us to illuminate the ways in which poverty, like status discrimination, generates stigma, social exclusion and loss of autonomy. Conversely, status inequality will only be fully addressed by addressing distributive inequalities. It is in these cases that the right to equality has most traction. However, in the jurisdictions examined here, there remains a deep reluctance to regard the right to equality on its own as generating social rights if the latter are not explicit in the constitution. The result is that while the right to equality potentially makes a valuable contribution to aspects of poverty based on mis-recognition and social and political exclusion, it has not yet been sufficiently developed to address distributive inequalities in its own right.
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