The Avoidance of Substance in Constitutional Rights

Abstract

Avoidance, on the part of the judiciary, calls to mind a number of judicial postures. For Brian Ray, in his recent article “Evictions, Avoidance and the Aspirational Impulse” in South Africa’s Constitutional Court Review, avoidance signals an active posture of economic and social rights decision-making that limits the substantive development of constitutional doctrine, cedes to current legislation or policy the frame of rights analysis, and deliberately marginalizes the judicial role. While celebrating Ray’s ability to link disparate features of the South African Constitutional Court’s jurisprudence - the use of reasonableness review, the creation of new procedural remedies, the deployment of either extremely abstract constitutional deliberation or extremely fact-specific deliberation (without, Ray contends, the moderate use of either), and a tendency to find infringements of the obligations attached to economic and social rights only in the face of clearly unconstitutional conduct, with a retreat to deference in harder cases – this comment takes issue with the category of avoidance, and its corollary, of substance. It suggests that avoidance may offer too blunt a category for analysis, especially when extended to comparative assessments. In particular, Colombia, India and the United Kingdom offer features of economic and social rights jurisprudence that do very different things. Avoidance is best reserved to describe the many jurisdictions that still fail – judicially or legislatively - to recognize economic and social rights as law.