• Selected
• Entire List

Abstract:
The article attempts to illuminate a hotly contested issue in international constitutional jurisprudence, the adjudication of socio-economic rights. It has historically been argued and accepted that socio-economic rights are non-justiciable. Advocates of this position have proposed that, while rights to housing, health care, education and other forms of social welfare may have value as moral statements of a nation's ideals, they should not be viewed as a legal declaration of enforceable rights. Recent judgments in South Africa represent an unparalleled challenge to this traditional assessment. Few countries' courts have found such rights to be fully and directly justiciable, even fewer have multiple, affirmative social rights opinions and no other country has developed its case law sufficiently to outline a comprehensive jurisprudence. As a consequence, South Africa's role in the social rights debate is seen as revolutionary and heroic by proponents of justiciability and as irresponsible and doomed by its detractors.
In this article, I argue that the Court that has been both less revolutionary and less irresponsible than commentators expected (and continue to allege). This is because the Court's jurisprudence has incorporated the concerns of the jurists who argue that courts lack the legitimacy and competence to decide such matters, even while the Court performs the affirmative review and remediation functions desired by those who favor judicial enforcement of social rights. It is an affirmative social rights jurisprudence tempered by internalized justiciability concerns.

South Africa, constitutional court, socio-economic rights

Abstract:
Without precedent in domestic or foreign law, the South African Constitution secured equal protection and benefit of law for its gay and lesbian citizens. This article suggests a three-part explanation, positing the interrelation of an historic, an ideological, and a procedural element. The stage for this unprecedented protection was set by the unique history of South Africa: the rise of gay and lesbian visibility contemporaneously with the post-apartheid reformulation of the country as a human rights state. Justification was provided by the examination of sexual orientation protections as a presumptive corollary of the ANC anti-discrimination ideology, and an autocratic constitutional drafting process codified progressive human rights standards despite uncertain claims of public support and ambiguous international law precedent.

While the constitutional drafting process was far from perfect, there are several ways in which inclusion of sexual orientation protections reflected some of the best aspects of the constitutional process. It reflected a commitment to human rights broadly defined, reflected liberal and progressive interpretation of international and foreign legal precedent, and represented a dramatic denial of the politics of division and acceptance of difference. Furthermore, while the efforts of gay rights advocates in the South African constitutional process offer little direct application in other countries, they set an important legal precedent. The human rights decisions of the South African Constitution are uniquely valued because of the nation's history. Hence, inclusion of gay rights discourse as a "universally accepted fundamental human right" ratifies the aspirations of gay and lesbian activists world wide and affirms South African claims that their Constitution creates a nation that "belongs to all who live in it, united in our diversity."

South Africa, constitutional court, sexual orientation, gay rights

Abstract:
One of the most distinctive elements of the South African Constitutional Court's jurisprudence has been its willingness to adjudicate socio-economic rights in addition to traditional civil and political rights. However, in its process of formulating a domestic jurisprudence of social rights enforcement, the South African Court had little guidance. Most academic commentators opposed the enforcement of social rights by the judiciary. Hence, the Court's task at least implicitly involved a review and evaluation of the reasonableness and applicability of those traditional critiques. The result in South Africa was an affirmative jurisprudence that internalized jurisprudential limits that correspond to those justiciability critiques not otherwise addressed by the Constitutional text or other unique elements of the South African milieu. This process for development of an adapted, affirmative jurisprudence of socio-economic rights enforceability is a novel and potentially fruitful contribution to comparative constitutionalism. The resulting caselaw may be of some value to other nations as a guidepost and model, but it is the process of differentiated incorporation by which the Court formulated its internalized limits that is clearly exportable to and adaptable by other countries desiring judicial enforcement socio-economic rights.

south africa, socio-economic rights, comparative constitutional law

Abstract:
Does inclusion of social welfare rights in the text of a constitution assist a country in addressing the challenge of poverty? Can judicial enforcement of rights to housing, healthcare, education and other welfare necessities advance substantive socio-economic equality in the manner traditional rights adjudication has advanced the related goal of civil and political equality? The purpose of this Article is to evaluate whether constitutional protection and court adjudication of social welfare rights are viable tools to address social injustice and to remedy persistent economic inequality.

The frequency of inclusion of socio-economic rights in modern constitutions is evidence of the increasing popularity of pre-committing to social welfare. Nevertheless, few countries' courts have enforced such rights and only the Republic of South Africa has crafted a comprehensive, affirmative approach to enumerated social welfare rights. There is a revolutionary-and instructive-element to the Court's work in this area. Through the process of "differentiated incorporation," the South African Court has crafted a viable jurisprudence for itself and identified an exportable model for social rights adjudication: A country-specific approach that disregards concerns invalid in the importing country but accommodates valid justiciability concerns through domestically-appropriate processes.

But even if adoption is possible for other countries with enumerated social rights, is it productive of improved social welfare? This Article uses the specific South African experience to evaluate the general capacity of constitutionally-enforced social welfare rights to advance socio-economic equality. It concludes that when one tempers expectations in light of the appropriate role for a judiciary and forgives some of the excessive caution by the South African pioneers in this area of jurisprudence, courts and constitutions have contributed-and may increasingly contribute-to the advancement of social justice in South Africa and elsewhere.

South Africa, social welfare rights, Constitutional Court, poverty, socio-economic rights, social justice, rights adjudication

Abstract:
Advocates and scholars have long queried whether or not express constitutional rights protection could advance the cause of socio-economic equality in the manner that it has advanced the related goal of civil and political equality. In this regard, the first decade of adjudication of socio-economic rights by the Constitutional Court of South Africa has been a rare and notable experiment into the capacity of courts to advance social justice. South Africa's post-apartheid Constitution included among its enumerated rights a host of protections intended to remedy the economic injustices of the past. The Court has dealt effectively with claims of the non-justiciability of social rights (though a process of "differentiated incorporation," adaptable to other nations) and has addressed specific social rights-most notably, housing and healthcare-in multiple cases. Unquestionably, South Africa's affirmative jurisprudence of socio-economic rights enforceability is a novel and potentially fruitful contribution to the struggle against poverty. But even if the South African court has demonstrated that social rights adjudication is possible, has it demonstrated that adjudication can remedy economic inequality? The Court's success has been uneven; enforcing socio-economic rights infrequently and in a less expansive manner that civil and political rights. There are reasonable justifications for this and historical analogies caution against immodest expectations, but there are similarly genuine reasons for disappointment. Moreover, what does the slow pace of economic advancement in South Africa tell us about the value of constitutional protection of such rights? This brief essay reviews the South African experience to evaluate the capacity of socio-economic constitutional rights to advance substantive equality.

South Africa, constitutional rights, social welfare rights, socio-economic rights, South African Constitutional Court, social justice