Abstract
Is the South African Constitution a 'people's document'? Does it give voice to, encourage and protect the actions of the poor, the homeless, the marginalised and the excluded? If the meaning of the rights in the South African Bill of Rights emerges through a complex interaction between the words on paper and its 'open community of interpreters', to what extent does it empower the 'practices of resistance and struggle' of the oppressed and marginalised, the poor and the homeless to 'name human rights and to put them to work'? Can we interpret the rights in the South African Constitution in such an activist way? This democratic conception of rights goes beyond, but draws upon Jennifer Nedelsky's idea that a 'constitutional dialogue' between the branches of the State should decide the content and meaning of rights in a society. This dialogue should make specific allowance for the participation of the beneficiary in both words and action. In this sense the citizen becomes the subject or author of rights, and we may arrive at a conception of rights that enables democracy to exert real influence over society.
Highlights
It should be aware that economic regulation cannot, in the final analysis, be left only to market forces, and it is necessary to see economic regulation as an instrument to realise rights
As far as the governance of civil society is concerned, the State should understand its responsibilities in this regard as going beyond a negative obligation based purely on the right to association or assembly
It does imply that civil society be given access to institutions of economic regulation, but it implies certain changes to the regime of civil society as far as the relationship between beneficiaries, recipients and donors is concerned
Summary
Is the South African Constitution a ‘people’s document’? Does it give voice to, encourage and protect the actions of the poor, the homeless, the marginalised and the excluded? If the meaning of the rights in the South African Bill of Rights emerges through a complex interaction between the words on paper and its ‘open community of interpreters’,1 to what extent does it empower the ‘practices of resistance and struggle’ of the oppressed and marginalised, the poor and the homeless to ‘name human rights and to put them to work’?2 Can we interpret the rights in the South African Constitution in such an activist way? This democratic conception of rights goes beyond, but draws upon Jennifer Nedelsky’s idea that a ‘constitutional dialogue’ between the branches of the State should decide the content and meaning of rights in a society.[3]. An activist interpretation – or ‘performative’ construction of the meaning of the Constitution – is possible.[4] Rights have to be performed in their social and historical settings, and State, civil society and market-based actions are fundamental to the realisation of rights, socio-economic rights; and the South African Constitution, it is claimed here, can be interpreted in this way. In this sense we need to develop an understanding of socio-economic rights that acknowledges the contingent nature of these rights. Socio-economic rights are realisable in different ways at different times, and depend on the relative abilities of different actors to realise them, and on the changing pref-
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