The South African Constitutional Court and Socio-Economic Rights as 'Insurance Swaps'

33 Pages Posted: 27 Jul 2013 Last revised: 29 Aug 2013

Rosalind Dixon

University of New South Wales (UNSW) - Faculty of Law

Tom Ginsburg

University of Chicago Law School

Date Written: August 1, 2013

Abstract

The political origins of various civil and political rights have been clearly theorized by Tom Ginsburg and others in work on the "insurance-based" function of judicial review in new democracies. To date, however, there has been relatively little work on the political origins of socioeconomic or second generation rights, such as rights to housing or health-care. The essay attempts to fill this gap, by expanding existing insurance-based theories to account for the potential insurance swap-based function of such rights for left-wing parties to constitutional negotiations, when making concessions on the scope of a property rights clause. Such an account, the essay suggests, fits closely with the actual drafting of ss. 25-29 of the 1996 South African Constitution, and thus also has potential implications for the interpretation of such provisions by the South African Constitutional Court. From an originalist perspective, at least, it suggests that in cases involving a potential conflict between property and other socioeconomic rights, courts should attempt to balance the two sets of rights in as context-sensitive a way as possible, and in other cases, to attempt to preserve scope for such an approach, by reasoning narrowly, or avoiding broad statements in favor of either a highly deferential or expansive approach to the definition of such rights. This also accords surprisingly well, the essay suggests, with the actual approach of the South African Constitutional Court in various cases decided in the 2010 Term on socioeconomic rights, such as Musjid, Abhali, Gudwana, as well as in many earlier cases.

Suggested Citation

Dixon, Rosalind and Ginsburg, Tom, The South African Constitutional Court and Socio-Economic Rights as 'Insurance Swaps' (August 1, 2013). Constitutional Court Review, Vol. 4, No. 1, 2011; University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No. 650; Loyola University Chicago School of Law Research Paper No. 436. Available at SSRN: https://ssrn.com/abstract=2296609 or http://dx.doi.org/10.2139/ssrn.2296609

Rosalind Dixon (Contact Author)

University of New South Wales (UNSW) - Faculty of Law ( email )

Kensington, New South Wales 2052
Australia

Tom Ginsburg

University of Chicago Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

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