Disagreement and the Constitutionalisation of Social Rights

Abstract

A key reason for resistance to constitutional social rights is that in many democracies there is reasonable disagreement about the nature and extent of the state’s welfare obligations. Social rights are likely to be regarded by many not as principles capable of constituting the political space but rather as essentially political claims. The article argues that it is nevertheless possible to envisage a democratically appealing role for the judiciary in enforcing social rights provided that courts are understood as forums of accountability. Against this background, the interest generated by the South African Constitutional Court’s social rights jurisprudence is unsurprising given that the ‘reasonableness’ standard does not place the Court in the position of primary decision-maker. However, the Court’s jurisprudence has been subjected to criticism. The question is how to develop the Court’s approach without compromising its democratic appeal. The article rejects the proposal that the Court should accord detailed content to social rights, an approach that has been taken by courts in jurisdictions such as India, Colombia and Brazil. The article instead suggests that the reasonableness standard should be structured by principles that are indicative of the types of circumstances where judicial intervention is necessary and appropriate. Disagreements regarding distributive justice should be played out primarily through the political process subject to a structured form of judicial supervision.