Adjudicating Non-Justiciable Rights: Socio-Economic Rights and the South African Constitutional Court
Eric C. Christiansen
Golden Gate University School of Law
Columbia Human Rights Law Review, Vol. 38, No. 2, 2007
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.
Number of Pages in PDF File: 42
Keywords: South Africa, constitutional court, socio-economic rightsAccepted Paper Series
Date posted: July 12, 2007
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