The role of courts in the quantitative-implementation of social and economic rights : a comparative study

Abstract

A growing number of democratic constitutions entrench social and economic rights (SER), impose affirmative obligations on government to promote and fulfill such rights, and render SER judicially enforceable at least in some degree. This combination raises new and challenging questions regarding separation of powers and the relative institutional competence of legislatures and courts. This article explores two judgments, Hartz IV from the German Federal Constitutional Court and Mazibuko & Others v City of Johannesburg & Others from the South African Constitutional Court. In both cases, litigants asked a reviewing court to test the constitutional validity of a legislative or executive program to give effect to a SER in which the key issue was whether the government’s program provided the target population with the constitutionally guaranteed social good in a sufficient amount measured in quantitative terms. The article argues that the difference in outcome between these two cases is not based in the doctrine that the Courts say they are applying, but rather in the different understandings the respective Courts have of their constraint to address an issue of SER and the limits of their creativity in a separation of powers doctrine to call the elected branches to account and engage civil society in a democracy.