Stanford Journal of International Law
socioeconomic rights, social welfare rights, judicial review, south africa, constitutional courts
There is an active and heated debate over whether socioeconomic rights should be included in modern constitutions because of their supposed "positive" character and the difficult separation-of-powers and institutional-competence concerns such rights raise. The controversy over the nature of socioeconomic rights and whether constitutions should include them is connected to the issue of how to enforce these rights when they are included. The South African Constitutional Court is the leading example of a court dealing with these enforcement issues, and its early decisions have been hailed by many, including Mark Tushnet and Cass Sunstein, as developing a uniquely effective approach to enforcing socioceconomic rights. Tushnet suggests that the Court has adopted a "weak-form" approach to enforcement that gives the legislature a substantial role to play in interpreting these rights. Sunstein similarly argues that the court has adopted an administrative-law approach that limits the Courts' role to assessing whether policies adopted by the other branches are reasonable. Many in South Africa, however, have been critical of the Court's approach, arguing that it fails to give full effect to the promise of these rights by inappropriately limiting the Court's role. On February 19, 2008 the Constitutional Court handed down its most recent decision in the socioeconomic rights area, Occupiers of 51 Olivia Road v. City of Johannesburg. City of Johannesburg, and a landmark housing settlement that the Court approved in that decision, illuminate the Court's approach to socioeconomic rights in important ways that call into question the accounts offered by both sides of this debate. This Article addresses the debate over the Constitutional Court's enforcement of socioeconomic rights and draws on City of Johannesburg litigation and other recent developments to offer a new framework for understanding the Court's approach to socioeconomic rights. Both sides of the debate have failed to adequately consider two key aspects of the Court's early cases. First, the Court has consistently left open the possibility for evolution towards stronger forms of enforcement for these rights in subsequent cases. Second, in two of these cases, the Court has concretely demonstrated its willingness to take a direct role in enforcing socioeconomic rights. Focusing on these two aspects of the early cases, it is evident that the Court has described the possibility for a mixed form of review that is potentially more robust than both sides of the debate claim. Parts II and III of this Article outline the Court's early cases and the debate that has developed around them. Part IV critiques both sides of this debate and develops a new account of the Constitutional Court's approach to socioeconomic rights. Part V analyzes recent developments in the socioeconomic rights area, including the City of Johannesburg litigation as well as recent lower-court cases, to assess the effectiveness of the Court's policentric approach.
Brian Ray, Policentrism, Political Moblization, and the Promise of Socioeconomic Rights, 45 Stanford Journal of International Law 151 (2009)