Book Review: Socio-Economic Rights: Adjudication Under a Transformative Constitution by Sandra Liebenberg

Document Type

Book Review

Publication Date

2013

Publication Title

European Journal of International Law

Keywords

South Africa, Socioeconomic Rights, Judicial Interpretation

Abstract

Socio-Economic Rights: Adjudication Under a Transformative Constitution by Sandra Liebenberg, the HF Oppenheimer Professor of Human Rights Law at Stellenbosch University, provides a new and theoretically rich perspective on the debate over the South African Constitutional Court’s approach to enforcing the social-rights provisions in the 1996 Constitution. Drawing on Karl Klare’s famous characterization of the South African Constitution as ‘transformative,’ Liebenberg argues that the social-rights provisions in the Constitution are part of an ‘enabling legal framework for redressing the injustices of the past and creating a transformed society’ (at xxi). Achieving this requires courts that are willing to develop a ‘jurisprudence which opens up sustained and serious engagement with the normative purposes and values which socio-economic rights should advance within the historical and social context of South African society’ (at xxi). It also means courts willing to abandon traditional, formalistic approaches to legal interpretation and understandings of separation of powers in favour of more ‘flexible and dialogic models’ (at xxii). While ultimately falling in the critics’ camp within the broader debate over the Constitutional Court’s approach, Liebenberg develops a nuanced, deeply textured, and theoretically informed account of how the Court’s existing jurisprudence can be developed into a more aggressive and more effective judicial role. In the process, Liebenberg provides a technically rich and nearly encyclopaedic description of social rights in South Africa.

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Volume

24

Issue

2

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