Creating dialogue about socioeconomic rights: Strong-form versus weak-form judicial review revisited

Abstract

The decision of the South African Constitutional Court in South Africa v. Grootboom is one of the most important examples of the judicial enforcement of socioeconomic rights known to comparative constitutional lawyers. South African scholars generally agree that the approach taken by the South African Court in Grootboom was overly cautious but disagree as to how much stronger the Court's approach could have been without overtaxing judicial competence and legitimacy. This article seeks to provide theoretical guidance in answering that question—by developing a theory of “constitutional dialogue.” Like other theories of cooperative constitutionalism, this theory suggests that judicial review will need to be weakened, compared to traditional models, before it can be counted fully legitimate—in general, and in the context of the enforcement of the positive dimension of socioeconomic rights in particular. At the same time, it suggests that, in enforcing rights, courts have a much greater capacity, even a responsibility, to play an active role in countering “blind spots” and “burdens of inertia” in the political process than is envisaged in other theories. In the enforcement of socioeconomic rights, courts should not discount the value of a strong approach to the definition of states' obligations, or the use of strong remedies; rather, they should weigh the benefits of weakened rights versus remedies according to the circumstances of a particular country and case.