R If C > P + B: A Paradigm for Judicial Remedies of Socio-Economic Rights Violations

Abstract:     
There is no rights apartheid. Socioeconomic rights are subject to enforcement in the same manner as civil rights. If a remedy requires extensive - quantitatively and qualitatively - policy and budgetary choices, the court will only make them for a constitutional violation which is proportionately - quantitatively or qualitatively - extensive. This dynamic may be described algebraically as R if C > B + P. The predictive utility of this paradigm is somewhat reduced by the difficulty of defining with precision the contextual aspects of these variables - the historical, political, and moral forces at work. As a rough approximation of judicial decisions regarding remedies, this paradigm suggests that Treatment Action Campaign and Others v. Minister of Health and Others will be the first socioeconomic case to break down the perceived rights apartheid. The article concludes, however, that the better use of this paradigm may be as an instrument for the design of litigation regarding socioeconomic rights.

Number of Pages in PDF File: 40

Keywords: South Africa, socioeconomic, constitutional, judicial remedies

JEL Classification: K33

Accepted Paper Series