For an academic such as myself who has been researching access to social rights in the United Kingdom (UK) social security system for ten years now, and who has been consistently demoralized by what Conor Gearty characterizes as 'the shallow end' in his assessment of the UK Supreme Court under the stewardship of Lord Reed,1 Whitney K. Taylor's central thesis – that it is possible to both legally and socially embed constitutional social rights for the ordinary citizen – is both exciting and compelling. The intellectual framework that she advances in her book, which focuses on Colombia, has the potential to act as a lens through which to assess future constitutional developments in the UK and beyond, such as the extent to which the incorporation of the Convention on the Rights of the Child into domestic law in Scotland has become embedded in citizen's lives.2 In his article for the London Review of Books, Gearty points to the legal defeat in the UK Supreme Court of two British single parents who sought to challenge the two-child limit on human rights grounds. A policy introduced by the Welfare Reform and Work Act 2016, this places a restriction on the payment of the child element of Universal Credit (the main income replacement benefit in the UK) and Child Tax Credit to the first two children born in a household. Gearty outlines how Lord Reed used the judgment in this case to send a message to civil society organizations, such as Child Poverty Action Group, who are focused on securing social rights for vulnerable claimants, that the UK Supreme Court would retreat from engaging in debate on issues of social and economic policy – a step-change from his predecessor, Lady Hale. Gearty notes that in Lord Reed's 73-page judgment on the two-child limit case that 'the lived experience of the litigants barely surfaces'.3 This is confirmation of Taylor's assertions that 'all too often, everyday discussions of law and social change (or politics writ large) are divorced from the ways in which people experience opportunities, constraints, advances and setbacks' (p. 212) and that 'for those without access to health, housing, food, water, sanitation and other social welfare goods, life is remarkably insecure' (p. 213). It has been understood that human rights form an inseparable whole, without divisions or fundamental differences between the different generations, into which they can be subdivided doctrinally. In terms of rights and freedoms, our constitution cannot sacrifice the exact expression of the guaranteed rights for brevity, nor risk possible misunderstandings that could derive from imprecise definition. Hence instead of a simple list of rights, such as the one in force [in the constitution of 1886], a Charter of Rights, Duties, Guarantees and Freedoms is proposed, in which the citizen can know exactly the rights and freedoms guaranteed by the state and the legal order that expresses them, with the greatest possible precision. (p. 60)4 file a writ of protection before a judge, at any time or place, through a preferential and summary proceeding, for himself/herself or by whoever acts in his/her name for the immediate protection of his/her fundamental constitutional rights when that person fears the latter may be violated by the action or omission of any public authority. (p. 63) the whole range [of rights], from the right to a modicum of economic welfare and security to the right to share to the full in the social heritage and to live the life of a civilised being according to the standards prevailing in society.6 Taylor's application of her theoretical framework adeptly demonstrates how social constitutionalism in Colombia has provided citizens with new opportunities to participate more actively in political, social, and economic life. She refers to this process as 'constitutional embedding', which in the case of Colombia has been driven by 'legal mobilization', which also aids the process of 'legal embedding'. Taylor describes constitutional embedding as 'the process by which a particular vision of constitution law comes to take root in everyday life' (p. 26). Legal embedding requires new legal institutions, processes, and mechanisms to make their presence known in the daily work of the law; judges to establish and expand precedent related to a particular (progressive) vision of constitutional law; and judges and other legal actors to mainstream a view that supports a shared vision (such as that social rights are justiciable). Legal mobilization to achieve legal embedding depends largely on access to justice and whether judges are willing to accept new claims and adapt to them: '[W]e might think of embeddedness as the degree to which something is no longer unusual in social or legal life, or the degree to which something has become part of what shapes social and legal expectations and behaviour' (p. 28). The citizens took ownership of the Constitution, which has never happened before. That is, before, only law students read the Constitution. No more. Now you have the common citizen, everyone. It is impressive they feel their Constitution as a birthright, and the tutela is even more untouchable for the Colombian citizen. (p. 162) However, as emphasized by Taylor, one should not overlook the role that legal embedding has played in informing the actions of judges and lawyers who arguably are responsible for setting the constitutional tone of the relationships with other branches of the state and with citizens who are seeking to enforce their rights. Taylor argues that in the same way that legal mobilization plays a key role in the legal embedding process, it also reinforces social embedding. In practical terms, it has also forced judges to 'think about the tutela and the possibilities of constitutional law in more expansive ways' (p. 97) by considering how social problems are experienced outside the courtroom, while still viewing them as legal in nature. The consistent rise in tutela claims, which has advanced the diversity of issues brought into scope, has made the judiciary more aware of the salience of social rights, subsequently advancing their receptivity to using the law to seek a resolution. This contrasts with Lord Reed's approach in the two-child limit case, where he viewed access to social rights through a political prism, which overlooked the lived reality of material deprivation.7 Taylor identifies three challenges to the stability of Colombia's embedded social constitution. The first is the limits of legal legibility, focusing on people who are left behind. The second is the labour connected with the tutela process, which requires prioritization due to the strict time limit. Furthermore, not all judges have specialist knowledge of constitutional law and are required to learn on the job. One judge said: 'On many occasions, [tutela] solutions may not protect rights to the extent they should, but it precisely has to do with the workload' (p. 173). Third, Taylor points to efforts by political actors who are committed to unravelling the constitutional order that has been embedded in Colombia, trying to alter institutionalized structures by nominating judges 'who are not viewed as superstars' (p. 159). David Landau explains that these efforts have been largely unsuccessful due to the strong bases of support that the Constitutional Court has been able to garner from academics, civil society, and the general public.8 In Chapter 9, which comes just before the book's conclusion, Taylor looks to South Africa, drawing on fieldwork that seeks to extend the central thesis of the book to the 1996 South African Final Constitution. She concludes that the Constitution in South Africa was firmly legally embedded but not socially embedded, as was substantively achieved in Colombia, despite similar communication efforts from the South African government. What was lacking, claims Taylor, was successful legal mobilization, as citizens 'have not been nearly as involved in legal claim-making as in Colombia' (p. 211). The key to citizens realizing their own social rights is their being empowered to engage in legal processes that do not require expert legal assistance.9 This is a key tenet in promoting access to justice and legal capability. While the comparative value of this chapter is clear to the extent that it demonstrates the importance of legal mobilization, the empirical work that Taylor has completed in South Africa ought to be afforded much more space than a single chapter. [b]efore the tutela, there was nothing one could do. It was necessary to wait for a politician to be elected, and if he cared about that community, wait for him to intervene in some way. Not now. Now, an individual, a single person, can file a complaint with the tutela. (p. 91)
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