Details
- Provides a clear analytical framework in which to determine the content of socio-economic rights
- Offers an interdisciplinary approach to the problem of socio-economic rights, linking theory and practice, political philosophy, constitutional law, and public policy
- Develops the 'minimum core' approach to socio-economic rights and highlights its policy implications
- Comparative caselaw and policy analysis, focussing on the practice of the South African constitutional court
This book addresses the pressing issue of severe poverty and inequality, and questions why violations of socio-economic rights are treated with less urgency than violations of civil and political rights, such as the right to freedom of speech or to vote?
Socio-economic rights have been widely regarded as aspirational goals, rhetorically useful, but having few practical implications for government policy and the distribution of resources within a polity. It is not therefore surprising that socio-economic rights have been systematically neglected in the world today, with millions still lacking access to even basic shelter, food or health-care. This book seeks to provide a sustained argument for placing renewed emphasis upon socio-economic rights in the fight against desperate poverty. It utilizes a combination of political philosophy, constitutional law, and public policy in its focus on the right to food, to housing, and to health-care.
Part I involves the development of a philosophical theory of rights that provides a common normative foundation for both civil and political rights and socio-economic rights. This theory involves developing an understanding of value that recognizes individuals have fundamental interests of differing levels of urgency. It also involves drawing an important distinction between conditional rights that flow purely from a normative focus on the equal importance of individuals and unconditional rights that involve competing normative and pragmatic considerations. A general theory of judicial review is also put forward that provides a justification for judicial involvement in the enforcement of socio-economic rights.
Part II then considers the implications of this general philosophical theory for the interpretation and enforcement of socio-economic rights in law. The focus of this more applied discussion is upon South Africa, where entrenched, directly justiciable socio-economic rights are expressly protected in the Constitution. The 'reasonableness' interpretive approach adopted by South Africa's Constitutional Court is critiqued and a modified version of the 'minimum' core approach proposed as the leading alternative. The latter approach requires priority to be given to the worst off in society through placing a heavy burden of justification on any society that fails to meet the minimal interests of individuals. It also requires concrete steps to be taken towards realizing a higher level of provision that guarantees individuals the necessary conditions for realizing a wide range of purposes. This approach is also shown to have important policy implications both for developing and developed countries and can, it is hoped, assist in creating an urgency and commitment towards eradicating extreme poverty.
Preface
Foreword
Introduction
1: Towards a Thin Theory of the Good
Introduction
Value and Point of View
Nussbaum and the Notion of a Human Life
Rawls and the Concept of the Person
Drawing Fact and Value Together: Experience and Purpose
In Defence of the Proposed Theory of Value
Judgments of Priority
Conclusion
2: The Justification of Fundamental Rights
Introduction
The Presuppositions of Agency and Fundamental Rights
Nagel's Strategy: Impersonal and Personal Reasons
Political Communities and the Justification of Fundamental Rights
Objections
Conclusion
3: Determining Our Unconditional Obligations
Introduction
Unanswered Questions About the Content of Rights
Conditional and Unconditional Rights
Translating Conditional Rights into Unconditional Rights
The Assignment of Duties
The Overall Decision Framework
Conclusion
4: Justifying the Judicial Review of Fundamental Rights
Introduction
Theories of Judicial Review
Disagreement, Rights, and Judicial Review
A Thin Rights-Based Theory of Judicial Review
Reaching Optimal Decisions Concerning Fundamental Rights: The Judiciary or the Legislature?
Socio-Economic Rights and Judicial Review
Conclusion
5: Judicial Review in Practice: The Reasonableness Approach and its Shortcomings
Introduction
Constitutional Interpretation in South Africa
Grootboom: Reasonableness and the Minimum Core
Treatment Action Campaign: Reducing Rights to Reasonableness
An Alternative Reading of the Jurisprudence?
Khosa: Reasonableness and the Confusion of Scope and Content
Conclusion
6: Political Philosophy in Action: Developing the Minimum Core Approach to Socio-Economic Rights
Introduction
Linking Political Philosophy and Legal Doctrine
The Case for a Minimum Core Approach
Objections to the Minimum Core Approach
The Notion of Priority and the Minimum Core
Resources, Impossibility, and Rights
The Availability of Resources
Conclusion
Conclusion: Implications for Policy in South Africa and Beyond
The Right to Food in the United States, India, and South Africa
The Right to Adequate Housing in the United Kingdom, India, and South Africa
Conclusion
Bibliography
Index
David Bilchitz, Lecturer in Jurisprudence, University of the Witwatersrand, Johannesburg, and Senior Researcher at the South African Institute for Advanced Constitutional, Public, Human Rights, and International Law.
"David Bilchitz has written an admirable book of breathtaking scope" - Jeff A. King, Public Law
"This book will undoubtedly stimulate robust debate on the theoretical justifications for socio-economic rights..." - Sandra Liebenberg, South African Law Journal
"...the most sustained examination to date concerning the justification for the inclusion of these [social and economic] rights..Bilchitz follows in the footsteps of the pioneering work of Sandra Liebenberg." - Mail and Guardian
