Rights, the public and the South African Constitution: civil society and the performance of rights

Abstract

The concept of rights holds considerable dominion over the discourses of the state and the public. This situation has left us unable to comprehend, police, and support forms of ‘non-state public action’ as relevant to rights. This article discusses the relevance of rights for non-state public action by civil society, and develops a framework within which the right to have access to social security may be made justiciable for civil society actors. This article proposes a performative model of rights that places a duty on the state to respect social action that upholds rights. It interprets the South African Constitution to clarify this model of rights by drawing on the legal tradition of ‘transformative constitutionalism’ (Klare 1998), the notion of a constitutional dialogue, and an interpretation of amongst others the horizontal application of rights, the justiciability of socioeconomic rights, the ‘rules of standing’ in the South African Constitution (s 38) and the phrase ‘access to…’ This enables us to incorporate autochthonous action, development and welfare in constructing the meaning of rights. The article concludes with a discussion of the normative requirements such a project would imply, and the questions that need to be addressed by social and legal scholarship in this conception of rights.