Eating socio-economic rights: The Usefulness of Rights Talk in Alleviating Social Hardship Revisited By Marius Pieterse
Critical Legal Studies emerged in the 1960s & 1970s challenges accepted norms and standards in legal theory and practice. theory sought to demystify myths at the heart of mainstream legal thought and practice. Law s indeterminacy law is politics, hence law is not neutral nor value-free. contribution to group inequality- serves the interests of the wealthy and powerful CLS subgroups Feminist legal theory Critical race theory Postmodernism
Rights Talk; Needs Talk, and the Challenge for Socio-economic rights 1980 s - Critical Legal Studies Scholars Relative, indeterminate, abstract, unstable Strengthened a long existing skepticism CLS scholars claim that needs rather than rights better serve the quest for social justice Tushnet : Avoid rights talk entirely & focus on the real experience
But a mere articulation of a need is insufficient to satisfy such need Rights discourse provides a viable means: Political significance Rights entail enforceable obligations and justification Instrumental in reconceptualizing needs Grounded in a substantive conception of the good society
Finds and scholarship expression in international human rights law Therefore, respect for and affirmation of human dignity requires the actualization of both civil and political rights and social and economic rights Socio-economic rights: Capable of reconciling right and need The language is empowering Contributes to achieving a more just society
The enforceability and enforcement of socioeconomic rights in South Africa. Debate around the inclusion of justiciable socio-economic rights For inclusion of socio-economic rights and civil and political to express a commitment Against inclusion : judicial capacities would be overstretched, adjudication of polycentric issues, cause counter majoritarian tensions, transgress the separation of powers. Lastly, create unrealistic expectations that these rights could be immediately enforced - could shatter the legitimacy of ser and the Bill of Rights as a whole.
1996 Constitution = both socio-economic rights and civil and political rights 2 broad categories of socio-economic rights: 1. Seemingly unlimited & immediate rights Against arbitrary evictions, refusal of emergency medical treatment, children's rights to basic nutrition, shelter, health care services Capable of limitation by way of section 36 2. State s positive obligations appear to be limited Access to adequate housing, health care services, sufficient food & water, social assistance reasonable legislation and other measures, within available resources to achieve the progressive realization of each of these rights
Case law examining the different levels of success Soobramoney v Minister of Health, KwaZulu-Natal Government of the Republic of South Africa v Grootboom Minister of Health v Treatment Action Campaign Khosa v Minister of Social Development
South African scholars have expressed disappointment failure of the Courts jurisprudence to live up to the transformative potential Criticisms against the reasonableness enquiry Court s approach is of limited use to citizens to secure access to goods and services Lack of remedial vigor Court is failing to subject State assertions of resource scarcity to sufficiently rigorous scrutiny. Common concern: Socio-economic rights are conceived of as a single overarching guarantee that socio-economic policies may be abstractly reviewed for adherence to principles of good governance.
Beneficiaries stand to gain little from the outcome of an inquiry into the adherence of law or policy to procedural standards Little use for urgent needs of access to social goods Constitutional Court s reluctance to enforce compliance with orders is problematic No more tangible benefits than when applying section 33 of the Constitution or common law administrative principles
P Gabel Symposium: The Phenomenology of Rights- Consciousness and the Pact of the Withdrawn Selves (1983) rights have three distinct phenomenological dimensions rights signify social experiences that are merely possible rather than the experiences themselves rights are conceived as being granted to the individual from an outside source ie State rights-based schema- passive and disconnected individualsrelations allowed in advance
Gabel Rights capable of entrenching a socially unjust status quo creates illusion that a just social order has been achieved rights typically articulated in abstract and indeterminate terms rights discourse strategically employed to co-opt, deflate and defeat transformation demands status quo uses processes of rights interpretation to reconcile social movement demands with the status quo
Pieterse socio-economic rights - manner articulated in s26 & 27 - accomplices to sidelining needs they represent. movement towards rights-based, socioeconomic redistribution in South Africa initial resistance constitutional inclusion of abstract guarantees of access to socioeconomic amenities- subject to progressive realisation initial demand for socioeconomic redistribution was transformative BUT judicial interpretation has not manifestly departed from social & economic status quo.
Pieterse deploys a 3-stage theatrical act to demonstrate hollowness of CC socio-economic jurisprudence illustrates Court s ingrained ideological sensibilities formalistic approach to adjudication and; remedial timidity Pieterse s concession Significant indirect benefits from CC s socioeconomic rights jurisprudence Jurisprudence in TAC, Khoza & Jaftha affirms enforceable obligations lurking in socioeconomic rights Challenge to progressive SA lawyers & socio-economic rights advocates globally uncover rights entitlements by intervening in rights initial articulation & definition.
Should we discard rights discourse? No- only potentially effective political channel to audibly express needs of vulnerable imperfections of rights discourse should motivate us to:- - supplement such strategies - progressive lawyers should assist in translating rights from their current conceptually empty articulation into needs-linked notions of entitlement enforcement mechanisms should be practicably capable of tangibly delivering the content of the right
Pieterse conceives of the various roles that several societal institutions Legislature define the scope of a socioeconomic entitlement establish structural mechanisms for its enforcement. Courts- meaningfully participate process if sufficiently prompted Litigants/ Activists/ Social Movements ensure conceptually empty socioeconomic rights are awarded content from the bottom up Scholars ground critiques of current adjudicative practices aimed rights vindication in a detailed and integrated understanding of content of the rights in question