Using Constitutional Adjudication to Remedy Socio-Economic Injustice: Comparative Lessons from South Africa
37 Pages Posted: 24 Sep 2009 Last revised: 30 Mar 2010
Date Written: September 23, 2009
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.
Keywords: South Africa, social welfare rights, Constitutional Court, poverty, socio-economic rights, social justice, rights adjudication
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