Social and Economic Rights? Lessons from South Africa

Abstract

Do social and economic rights belong in a democratic constitution? Skeptics have wondered whether it is possible to constitutionalize such rights without imposing an untenable managerial responsibility on courts. In an extraordinary decision, the Constitutional Court of South Africa has provided a new approach to social and economic rights, one that respects the fact of limited resources while also requiring governmental attention to basic needs. This new approach might be called an administrative law model of constitutional rights. It contains considerable promise, because it recognize rights to reasonable programs, rather than to protection of each individual, a path that might well be beyond governmental capacities.