Constitutional Ropes of Sand or Justiciable Guarantees? Social Rights in a New South African Constitution

Abstract

The purpose of this article is to bring to international attention and defend the African National Congress's decision to attempt to include certain social rights in a new South African constitution. The authors hope to engender international academic and political debate concerning the limits and possibilities of entrenching social rights in a new South African constitution, as well as to offer thoughts that might be of broader relevance to other societies adopting or renewing their constitutions. Part I outlines two types of arguments against the constitutional justiciability of social rights. Part II addresses the legitimacy of social rights and contends that the exclusion of justiciable social rights from a South African constitution would threaten the realization of social justice in South Africa because of law's constitutive influence on society's and individuals' self-understandings. In Part III, the authors scrutinize and find wanting claims of institutional incompetence, notably claims which deny the capability of courts to impose positive obligations on governments and claims which allege that social rights are too imprecise for adjudication. Part IV discusses the "interdependence" of civil and political rights with social rights and argues that such interdependence helps to challenge further claims that judicial bodies can neither legitimately nor competently scrutinize social rights as a matter of constitutional review. Part V then shifts from international law to comparative constitutional law and invokes emergent jurisprudence of the Supreme Court of India, which is infused with the principle of interdependence, to tell a story of the rhetorical possibilities of constitutionalized social rights. Part VI offers some concrete textual and institutional strategies to minimize the antidemocratic potential of judicial review.