Adjudicating Socio-Economic Rights under a Transformative Constitution (original) (raw)
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Book Review: Socio-Economic Rights: Adjudication Under a Transformative Constitution
SSRN Electronic Journal, 2000
Every so often time and place and effort converge to bring about something transformative in law's promise to justice. And every so often, a discrete book stands in to document, theorize, contextualize and even help to create this shift. If South Africa's entrenchment of justiciable economic and social rights represents such a legal transformation, Sandra Liebenberg's SocioEconomic Rights: Adjudication under a Transformative Constitution has all the makings of such a book. Of course, South Africa's post-apartheid Constitution of 1996 has produced a rich literature across many fields of law, 1 but this book is distinct in the way that it focuses on the constitutional ambition to realize economic and social rights against a backdrop of endemic poverty and inequality, a theme that is used to orient the broader legal changes that are now authorized and mandated under these provisions.
2017
The South African Constitution is heralded for the broad protections it affords social and economic rights. In Socio-Economic Rights: Adjudication under a Transformative Constitution, Professor Sandra Liebenberg offers a thoughtful examination of the socioeconomic rights jurisprudence developed by South African courts since the adoption of the country’s current constitution fifteen years ago. In meticulous detail, she describes how the jurisprudence of the Constitutional Court and other South African courts has evolved in the area of socioeconomic rights. At the same time, she offers an incisive critique of this jurisprudence, identifying how it has too often been shaped by a narrow and formalistic conception of rights that overlooks their social justice purposes and reinforces deeply unequal social and economic relationships. Finally, Liebenberg offers suggestions for the future development of this jurisprudence in ways that would be more consonant with the transformative purposes ...
Rights and Democracy: In a transformative constitution
2004
PREFACE viii or conceptualist claim that politics should be kept out of law so as to preserve the integrity of law, and the radical democratic claim that law should be kept out of politics so as to preserve the integrity of politics. A number of essays also engage Frank's writings on the relation between democracy and rights and the problem of democratic self-government (or what he calls the 'paradox of constitutional democracy'). For instance, Johan Froneman deals with the question how the constitutional demand for the rule of law can be reconciled with the democratic demand that the people govern themselves. He addresses in this regard Michelman's arguments as to why the duty and responsibility to effect this essentially impossible reconciliation ultimately falls on the judge. A second-closely related-theme deals with questions of alterity and difference. Irma Kroeze draws upon Frank's reflections on self-government and difference to criticise the Constitutional Court's failure in freedom of religion cases to question normative assumptions that are embedded in mainstream morality, and to seek to include the marginalised other. Karin van Marle reads Michelman as a hybrid thinker who occupies a space between liberalism and civic republicanism. She argues in this regard that Michelman's adherence to certain basic principles of liberalism necessarily detaches him from the concern with the reflexive horizon of love raised in recent European legal theory. A third theme relates to the need for judges to engage in practical reasoning and judgment, to explain the moral and political reasons for their decisions, rather than purporting to derive their judgments from 'self-applying' legal materials. Lourens du Plessis explores Frank's reflections on practical reasoning within the context of constitutional interpretation, while Henk Botha looks at it from the perspective of the limitation of rights and debates about judicial balancing. Finally, a whole range of essays deal with issues of social justice, socioeconomic rights, and the need to subject private-law institutions and social and economic power relations to a transformative critique. André van der Walt, Danie Brand and Jonathan Klaaren explore this theme with reference to the issues surrounding the promotion of socioeconomic rights in the South African Constitution. In the process, they are able to engage the rich source of publications that Frank has written in this field since 1967 and the emerging case law from the South African Constitutional Court. Hanri Mostert, on the other hand, approaches the tension between the protection of private rights and the promotion of social justice from the perspective of the property clause, arguing that a sound balance between these two goals can be found according to both Frank's writings on property as a constitutional right and German constitutional case law. Dennis Davis criticises the Constitutional Court's reliance, in cases dealing with the horizontal application of the Bill of Rights, on the conceptual tools of the past, and argues instead for a future-orientated or transformative approach. We wish to thank the University of South Africa for hosting a colloquium in January 2003, where authors presented extracts from their essays and were given the benefit of Frank's direct engagement with their ideas. Thanks also to Gerhard du Toit for his editorial assistance and the bibliography, and to Frederik de Jager of AFRICAN SUN MeDIA for his enthusiasm for the project. We trust that this collection of essays will, in the spirit of Frank's own scholarship, stimulate much further intellectual argument and debate.