WESSON constitucionalización social rights

Human Rights Law Review 12:2 ! The Author [2012]. Published by Oxford University Press.All rights reserved. For Permissions, please email: [email protected]:10.1093/hrlr/ngs010 Advance Access publication 24 May 2012. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Disagreement and theConstitutionalisation ofSocial Rights

MurrayWesson*

Abstract

A key reason for resistance to constitutional social rights is that inmany democracies there is reasonable disagreement about the natureand extent of the state’s welfare obligations. Social rights are likelyto be regarded by many not as principles capable of constituting thepolitical space but rather as essentially political claims. The articleargues that it is nevertheless possible to envisage a democratically ap-pealing role for the judiciary in enforcing social rights provided thatcourts are understood as forums of accountability. Against this back-ground, the interest generated by the South African ConstitutionalCourt’s social rights jurisprudence is unsurprising given that the‘reasonableness’ standard does not place the Court in the position ofprimary decision-maker. However, the Court’s jurisprudence has beensubjected to criticism. The question is how to develop the Court’s ap-proach without compromising its democratic appeal. The article rejectsthe proposal that the Court should accord detailed content to socialrights, an approach that has been taken by courts in jurisdictions suchas India, Colombia and Brazil. The article instead suggests that thereasonableness standard should be structured by principles that areindicative of the types of circumstances where judicial intervention isnecessary and appropriate. Disagreements regarding distributive justiceshould be played out primarily through the political process subject toa structured form of judicial supervision.

* Lecturer, School of Law, University of Leeds ([email protected]). I would like to thank par-ticipants at the workshop ‘Advancing Economic and Social Rights, Current Issues inResearch’ held at the University of Durham on 18 March 2011 and participants at the WGHart Workshop, ‘Comparative Aspects on Constitutions: Theory and Practice’ held at theInstitute of Advanced Legal Studies, University of London, from 29 June to 1 July 2010, forvery helpful feedback on earlier versions of this article.

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Keywords: constitutional law ^ social rights ^ reasonablenessstandard ^ democracy ^ distributive justice ^ role of courts ^ SouthAfrican Constitutional Court

1. Introduction

To what extent should constitutionsçused loosely to include ‘constitutionalstatutes’ such as the Human Rights Act 1998 (HRA) as well as rigid Bills ofRightsçreflect the values and institutions of the welfare state in the form ofjusticiable social rights? Put differently, to what extent should statutory entitle-ments to welfare that already exist in many democracies be translated intoconstitutional entitlements? What form should these provisions take andwhat should the role of the courts be in giving effect to these rights? Theseare difficult questions that have gained particular prominence in recentyears. There is no shortage of social rights advocates in the ranks of academia.Yet in many democracies considerable uncertainty remains in the politicalsphere. In the UK, for instance, the previous Labour government was only will-ing to consider whether there might be a role for non-justiciable principles re-flecting existing welfare provisions in a future British Bill of Rights.1 The JointCommittee on Human Rights (JCHR) went further and advocated the inclusionof justiciable social rights in a Bill of Rights.2 Yet these were made subjectto caveats, which meant that they reflected an attenuated version of socialrights.3 The current Conservative/Liberal Democrat coalition government hasestablished a commission to investigate the case for a Bill of Rights.4 Butgiven the inclusion of several members sceptical of the existing HRA,5 itseems unlikely that the Commission will recommend the creation of constitu-tional social rights.

There are many factors that might explain the hesitation that so easily sur-rounds constitutional social rights at a political level. However, this articlefocuses on two issues. The first is the observation that in many democraciesthere is likely to be persistent, deep-seated and reasonable disagreement about

1 UK Ministry of Justice, ‘Rights and Responsibilities: Developing our ConstitutionalFramework’, CM7577 (2009) at para 1.11, available at: http://www.official-documents.gov.uk/document/cm75/7577/7577.pdf [last accessed 28 March 2012].

2 Joint Committee on Human Rights (JCHR), ‘A Bill of Rights for the UK?’ Twenty-Ninth Report2007/08, 10 August 2008, available at: http://www.publications.parliament.uk/pa/jt200708/jtselect/jtrights/165/16502.htm [last accessed 28 March 2012].

3 For discussion, see Fredman,‘New Horizons: Incorporating Socio-Economic Rights in a BritishBill of Rights’ (2010) Public Law 297 at 316; and Gearty, ‘Against Judicial Enforcement’, inGearty and Mantouvalou (eds), Debating Social Rights (Oxford/Portland: Hart, 2011) at 66.

4 ‘Commission on a UK Bill of Rights launched’, available at: http://www.justice.gov.uk/news/newsrelease180311a.htm [last accessed 28 March 2012].

5 Travis and Wintour, ‘Deadlock likely on commission pondering a British Bill of Rights’,The Guardian, 18 March 2011, available at: http://www.guardian.co.uk/law/2011/mar/18/deadlock-bill-of-rights-commission [last accessed 28 March 2012].

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the nature and extent of the state’s welfare obligations. Of course, all rights aresubject to disagreement.6 But social rights touch on what is in many democra-cies a key political fault line, namely, the divide between political groupingsthat favour an expansive role for the state in the provision of welfare andthose that understand the state’s welfare obligations in more restrained terms.In these circumstances, constitutional social rights are likely to be regardedby many not as principles capable of underpinning and framing the politicalprocess but rather as essentially political claims. The JCHR makes this pointas follows:

In any country debating whether or not to adopt a national Bill of Rights,one of the most controversial issues is whether the Bill of Rights shouldinclude economic and social rights. This is hardly surprising: the debateis an outcrop of often deeply submerged but sincerely held differencesbetween reasonable people about the most fundamental questions of pol-itical philosophy, including the nature of liberty and the appropriate roleof the State in preventing inequality. We therefore approach the issueunder no illusions about the fact that opinion on including economicand social rights is currently polarised, and that the division of opinionoften follows party political lines.7

The second issue is that notwithstanding the unprecedented judicial andacademic attention that social rights have received in recent years, the natureof the obligations imposed by these rights remains unclear.8 These issuesare related because in the absence of a reasonably clear account of whatsocial rights entail it is difficult to sensibly address concerns regarding theirconstitutionalisation.

This article argues that it is nevertheless possible to construct a democratic-ally appealing role for the judiciary in enforcing social rights in jurisdictionssuch as the UK, where some level of judicial enforcement of civil and politicalrights is now generally accepted but social rights are likely to be regarded bymany as democratically problematic. To this end, the first part of the articleargues that the role of the courts in determining the state’s welfare obligationsshould generally be clearly secondary and rooted in the value of accountability,thereby allowing disagreements about social rights to be played out primarilythrough the democratic process. However, in this section the idea is also intro-duced that there may be circumstances that should be of particular concern

6 See generallyWaldron, Law and Disagreement (Oxford: Oxford University Press, 1999).7 See JCHR, supra n 2 at para 147.8 It is true that the United Nations Committee on Economic, Social and Cultural Rights has pro-

duced a body of social rights jurisprudence in its ‘general comments’. However, given institu-tional differences between the Committee and domestic courts it is doubtful that courts willgenerally be willing to adopt these wholesale. This appears to be borne out by the SouthAfrican experience of constitutional social rights which is discussed in greater depth in thebody of the article.

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to courts, where the judiciary should involve itself more closely in the workingsof the welfare state. Against this background, the second part of the articleargues that the interest generated by the South African Constitutional Court’snow well-known social rights jurisprudence is unsurprising. This is becausethe Constitutional Court employs a reasonableness standard that can beunderstood as imposing a duty of accountability on the state, without placingthe courts in the position of primary decision-makers. In the UK, for instance,the Constitutional Court’s approach played a key role in the formulation of theJCHR’s proposals.

Nevertheless, as it stands, it is unclear that the Constitutional Court’s rea-sonableness standard provides a solution to the problem of how courts shouldenforce social rights. Although the Court’s decisions have attracted praisethey have also been subjected to criticism, much of which is not withoutforce. The article therefore considers whether it is possible to develop thesocial rights jurisprudence of the Constitutional Court while maintaining itsdemocratic appeal. Many commentators critical of the reasonableness standardhave urged the Constitutional Court to give more detailed content to socialrights, an approach that has been taken by courts in jurisdictions such asIndia, Colombia and Brazil. The article rejects this proposal on the groundthat it would be tantamount to the judiciary determining the extent of thestate’s welfare obligationsçprecisely the issue that is subject to persistent dis-agreement in the political sphere in jurisdictions such as the UK and which istherefore more appropriately resolved through democratic politics. The articleinstead argues that there should be greater predictability in the intensity withwhich the reasonableness standard is applied. This should be achieved bytying the reasonableness standard to principles that are indicative of thetypes of circumstances that should be of particular concern to courts. In thisway, it should be possible to meet the multiple objectives of ensuring a levelof accountability on the part of the state regarding the measures that it hasimplemented to realise social rights; allowing disagreements about welfare tobe played out primarily through the democratic process; while also ensuringjudicial involvement in the types of cases where it is necessary and appropriate.

2. The Democratic Objection to ConstitutionalSocial Rights

This article employs the term ‘social rights’ as opposed to ‘socio-economicrights’ or ‘economic, social and cultural rights’. This is to indicate that thefocus is on rights such as education, health, housing, water and food asopposed to labour rights or cultural rights. Given that the realisation of socialrights is an onerous obligation, typically the state need only proceed

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progressively and within its available resources. This is the case under theInternational Covenant on Economic, Social and Cultural Rights (ICESCR)9

and the South African Constitution.10

Historically, there has been a tendency for discussions of social rightsto take as their starting-point the view that social rights and civil and polit-ical rights are conceptually distinct. On this view, civil and political rightsare cost-free and impose negative obligations whereas social rights areresource-intensive and impose positive obligations. Civil and political rightsimpose clear duties and consequently lend themselves to judicial enforcementwhereas the duties imposed by social rights are vague and are thereforenon-justiciable.

However, it is now well-established that this dichotomy is overstated.11

Positive duties are imposed not only by social rights but also by civil andpolitical rights such as the right to vote and the right to fair trial. Indeed, aninfluential view is that all rights impose bundles of negative and positive obli-gations. On this view, which stems from the work of Henry Shue,12 rightsimpose three levels of obligation: a duty to respect, a duty to protect and aduty to promote and fulfil. The boundary between civil and political andsocial rights is therefore blurred if not erased.

Nevertheless, this does not dissolve objections to constitutional social rights.Even where it is accepted that the difference between civil and political rightsand social rights is one of degree rather than kind, social rights may still be re-garded as raising more acute democratic concerns. This objection may takethree overlapping forms. Firstly, it may be that a key political grouping simplyrejects the obligations associated with social rights. This scenario tends to beinvoked by political constitutionalists such as Richard Bellamy who opposeconstitutional social rights on the basis that these ignore the reasonable dis-agreement between social democrats, who regard social rights as promotingautonomy, and conservative libertarians, who view the taxation required tosupport social rights as ‘on a par with forced labour’.13 However, it is possibleto overstate the extent to which we disagree about the state’s welfare obliga-tions. Even in the United States, commonly regarded as being to the ‘right’ ofmost liberal democracies,14 genuinely libertarian viewsçof the kind alluded

9 993 UNTS 3 at Article 2(1).10 Constitution of the Republic of South Africa No 108 of 1996 at sections 26, 27 and 29.11 See, for example, Fredman, Human Rights Transformed: Positive Rights and Positive Duties

(Oxford: Oxford University Press, 2008) at 66.12 Basic Rights (Princeton: Princeton University Press, 1980). Shue’s theory has been developed

by the United Nations Committee on Economic, Social and Cultural Rights: see, for example,General Comment No 12: The right to food (art. 11), 12 May 1999, E/C.12/1999/5; 6 IHRR 902(1999) at para 15.

13 Political Constitutionalism (Cambridge: Cambridge University Press, 2007) at 25 quotingNozick, Anarchy, State and Utopia (Oxford: Blackwell, 1974) at 169.

14 See, for example, Micklethwait and Wooldridge, The Right Nation: Why America is Different(London: Allen Lane, 2004).




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to by Bellamyçare apparently not widespread.15 Nevertheless, it could be thata prominent political grouping rejects the state’s responsibility to deliver a keysocial right, such as healthcare. It may also be that the state’s obligation to pro-vide some level of welfare is accepted, but this is understood in such limitedterms that the notion of social rights is effectively rejected.

In political contexts such as these, social rights are unlikely to find theirway into constitutions or survive in constitutional form. This does not meanthat ordinary legislation may not from time to time be enacted giving effect toequivalent levels of welfare provision. This is because ordinary legislation maysimply give effect to the policies of transient political majorities. It is under-stood that such legislation may be repealed or amended by a subsequent major-ity. Constitutions, on the other hand, aspire to a greater degree of permanencein their expression of the state’s obligations. This is so even if such permanencetakes the relatively modest form of protection against implied repeal, as is thecase with the HRA.16 Constitutions also aspire to constitute or frame the polit-ical space in a way that ordinary statutes do not.17 This may again be illu-strated in modest form by the capacity of the courts under the HRA to issue‘declarations of incompatibility’.18 It is for these reasons that social rights areunlikely to be constitutionalised in political contexts where the obligationsgenerated by these rights are not subject to wide political acceptance.

In passing, it should be stressed that this observation does not conceal acovert desire for a constitution that is politically neutral.19 As Keith Ewingnotes, every constitution expresses a set of political commitments. Even the as-piration for a politically neutral constitution hinges on the (political) viewthat political pluralism is desirable. However, Ewing also notes that a constitu-tion is an expression of ‘how a community wishes to be governed’.20 In JosephRaz’s formulation, the constitution is expressive of the ‘common ideology’ thatgoverns public life in the country.21 Given this, where the duties associatedwith social rights are not widely accepted, they are likely to be regarded as es-sentially political in the sense that their status has not been settled.

15 Kymlicka, Contemporary Political Philosophy: An Introduction, 2nd edn (Oxford: OxfordUniversity Press, 2002) at 159. ‘Everyday libertarianism’, the term employed by Murphy andNagel to describe a sense of natural entitlement to pre-tax income, is of course more preva-lent: see The Myth of Ownership: Taxes and Justice (Oxford: Oxford University Press, 2004).

16 Thoburn v Sunderland City Council [2003] QB 151 at paras 62^3.17 For an illuminating discussion, see Loughlin, Foundations of Public Law (Oxford: Oxford

University Press, 2010) at 275.18 Section 4 HRA.19 For an argument that a constitution can achieve political neutrality by embracing the prin-

ciples of liberal democracy, see Oliver, ‘Written Constitutions: Principles and Problems’ (1992)45 ParliamentaryAffairs 135 at 150.

20 Ewing, ‘Social Rights and Constitutional Law’ (1999) Public Law 104 at 112.21 ‘On the Authority and Interpretation of Constitutions: Some Preliminaries’ in Alexander (ed.),

Constitutionalism: Philosophical Foundations (Cambridge: Cambridge University Press, 1998)152 at 154.

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Secondly, and more commonly, it may be that the state’s duty to realisesocial rights is generally accepted but there is disagreement about the meansthat should be adopted as well as the extent of the state’s obligations. Forexample, it seems uncontroversial to note that universal healthcare formspart of the ‘common ideology’ that governs public life in the UK. The previousLabour government’s Green Paper on a proposed Bill of Rights andResponsibilities identified the foundation of the NHS as one of a series of con-stitutional landmarks having their origins in Magna Carta in 1215.22 The cur-rent coalition government likewise characterises the NHS as ‘an importantexpression of our national values’ and expresses its commitment to a healthservice that is ‘free at the point of use and available to everyone based onneed, not the ability to pay’.23

Nevertheless, there is still obviously considerable scope to disagree about ap-propriate levels of spending on the NHS and the means whereby universalhealthcare should be delivered. A strategy sometimes employed by socialrights advocates in an attempt to circumvent disagreements about the extentof the state’s welfare obligations is to argue that ‘democracy can only be sus-tained if there is a positive duty on the State to ensure that all are equally ableto exercise their democratic rights and participate in society’.24 In essence, theargument is that fully realised social rights are a precondition of democracy:an underlying commitment that should not itself be subject to democratic dis-pute. This is undoubtedly true up to a point: participation in the democraticprocess clearly requires some level of material provision.25 Even so, our under-lying convictions about distributive justice are likely to manifest themselvesin disagreement about the extent of realisation of social rights that is neces-sary in order to ensure democratic participation. Some might contend thatthe conditions for democratic participation are adequately secured throughexisting welfare state institutions such as universal healthcare and free com-pulsory schooling up to the age of 16.26 In contrast, Joshua Cohen’s formula-tionçthe participants in the ideal deliberative procedure should be‘substantively equal in that the existing distribution of power and resourcesdoes not shape their chances to contribute to deliberation, nor does that distri-bution play an authoritative role in their deliberation’27çwould seem to

22 UK Ministry of Justice, supra n 1 at 8.23 ‘The Coalition: Our Programme for Government’ available at: http://www.cabinetoffice.gov

.uk/news/coalition-documents [last accessed 28 March 2012].24 Fredman, supra n 11 at 39.25 Mantouvalou, ‘In Support of Legalisation’, in Gearty and Mantouvalou, supra n 3 at 123.26 Mantouvalou argues that people who live in ‘dire poverty’ have little opportunity to partici-

pate in democratic government and that a level of ‘basic material provision for all’ is thereforenecessary: see Gearty and Mantouvalou, supra n 3 at 122. Mantouvalou’s concern thereforeappears to be with the effects of outright destitution on democratic participation.

27 ‘Deliberation and Democratic Legitimacy’, in Hamlin and Pettit (eds), The Good Polity:Normative Analysis of the State (Oxford: Basil Blackwell, 1989) 17 at 23. This formulation iscited with approval by Fredman, supra n 11 at 39.




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extend beyond social rights to equalisation of social class and income. The ar-gument is therefore useful in making the case for constitutional social rightsbut is unlikely to neutralise disputes regarding the extent of the state’s welfareobligations. The key is therefore to arrive at an understanding of the judiciary’srole in enforcing social rights that provides for some level of oversight butdoes not result in the courts prescribing the nature and extent of the state’swelfare duties. This point is returned to below.

Thirdly, it may be that political actors generally accept the obligations en-gendered by social rights but object to the involvement of non-elected judgesin their enforcement. Considerable energy has been devoted to rebutting thisparticular variant of the democratic objection to constitutional social rights.Rosalind Dixon, for example, argues that courts may be well-placed to remedy‘imperfections’ in the legislative process.28 These may take the form of ‘blindspots’or ‘burdens of inertia’. The former arise where legislators fail to recognisethat legislation can be applied in a way that infringes rights. The latter occurswhere various factors lead to legislative inertia so that rights-based protectionis not achieved.29

Dixon’s argument that courts can usefully supplement the legislative processin the realisation of social rights is extremely valuable. Indeed, a key objectiveof this article is to develop this argument. However, it should be noted thatit is possible to conceive of circumstances falling outside the categories of‘blind spots’ and ‘burdens of inertia’ where we might nevertheless regard judi-cial intervention as necessary and appropriate. For example, the UK case ofLimbuela30 concerned asylum seekers who were destitute but had been refusedsupport by the Secretary of State. Such support would normally have been pro-vided, owing to the statutory prohibition upon asylum seekers taking employ-ment. However, section 55(1) of the Immigration and Asylum Act 1999required the Secretary of State to withdraw support where he was not satisfiedthat the claim had been made as soon as reasonably practicable after arrivalin the UK. The House of Lords held that the failure to provide such supportamounted to a violation of Article 3 of the European Convention on HumanRights, the right not to be subjected to torture or inhuman or degrading treat-ment. In Limbuela, it is doubtful that the legislature suffered from a ‘blindspot’ regarding the application of the statute. The effect of the legislationçtothrust a category of asylum seekers into destitutionçmust surely have beenappreciated. Nor is it clear that this legislation resulted from a ‘burden of iner-tia’; if anything, legislative inertia would have prevented this rights violation.

28 ‘Creating Dialogue About Socioeconomic Rights: Strong-form Versus Weak-form ReviewRevisited’ (2007) 5 International Journal of Constitutional Law 391.

29 Dixon distinguishes sub-categories of blind spots and burdens of inertia: see Dixon, ibid. at402.

30 R v Secretary of State for the Home Department, ex parte Limbuela [2005] UKHL 66; [2006] 1 AC396.

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A more far-reaching line of argument stems from the work of SandraFredman. Fredman argues that judicial enforcement of social rights is demo-cratically legitimate to the extent that courts are able to further the values ofaccountability (by requiring decision-makers to explain and justify their deci-sions), participation (through the courtroom as opposed to the ballot box) andequality (by providing opportunities for minorities to participate in the demo-cratic process).31

Fredman’s position is more far-reaching than Dixon’s in various respects.Firstly, as far as equality is concerned, Fredman argues that ‘[w]hen minoritiesare excluded from the political process, or their voice is systematically silenced,representative democracy is not functioning properly. Arguably then, thedemocratic role of the judiciary is to remedy this deficit, and it is this whichgives the judicial function its legitimacy’.32 This argument might appear toecho Dixon’s concern with legislative ‘blind spots’. However, the argumentfrom equality is more extensive in that it is able to accommodate cases likeLimbuela where legislation impacted harshly upon an unpopular minoritywithout representation in the political process but where the legislature ap-peared not to be suffering from a ‘blind spot’ as far as the application of thelaw was concerned.

Regarding accountability, Fredman argues that courts can play a role in theenforcement of social rights without undermining democracy by requiringelected representatives to ‘explain and justify their actions to the electorate onthe basis of arguments that are acceptable to all’.33 In making this argument,Fredman draws on the work of David Dyzenhaus, who himself has sought todevelop Etienne Mureinik’s notion of a ‘culture of justification’: ‘What justifiesall public power is the ability of its incumbents to offer adequate reasons forthe decisions which affect those subject to them . . .The courts’ special role isas an ultimate enforcement mechanism for such justification.’34 This rationalefor constitutional social rights has recently received a powerful endorsementby the South African Constitutional Court in Mazibuko v City of Johannesburg.In the words of O’Regan J:

A reasonableness challenge requires government to explain the choicesit has made . . . If the process followed by government is flawed or theinformation gathered is obviously inadequate or incomplete, appropriaterelief may be sought. In this way, the social and economic rights

31 Fredman, supra n 11 at 103.32 Ibid. at 109. See further Wesson, ‘Grootboom and Beyond: Reassessing the Socio-Economic

Jurisprudence of the South African Constitutional Court’ (2004) 20 South African Journal onHuman Rights 284; and Wesson, ‘Equality and Social Rights: An Exploration in Light of theSouth African Constitution’ (2007) Public Law 748.

33 Fredman, supra n 11 at 103.34 Dyzenhaus, ‘The Politics of Deference: Judicial Review and Democracy’, in Taggart (ed.), The

Province of Administrative Law (Oxford: Hart, 1997) 305.




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entrenched in our Constitution may contribute the deepening of democ-racy. They enable citizens to hold government accountable not onlythrough the ballot box but also, in a different way, through litigation.35

This is clearly a powerful argument for constitutional social rights.However, if accountability is the rationale for extending the jurisdiction of thecourts to this area then the role of the judiciary must clearly be secondaryand disagreements regarding welfare must continue to be played out primarilythrough the democratic process. As Dyzenhaus notes, a distinction can bedrawn between a standard that asks whether a non-judicial decision is justifi-able (whether it is defensible) and one that asks whether it is justified (whetherit coincides with the decision that the judge would have given).36 If courts gen-erally applied the latter standard in the field of social rights, they would ceaseto be forums of accountability and instead place themselves in the position ofprimary decision-makers. The argument that judicial enforcement of socialrights is consistent with democracy would then be difficult to sustain.

Nevertheless, the notion of social rights as imposing a burden of account-ability on the state usefully augments Dixon’s argument that in the fulfilmentof positive duties there may be circumstances that should be of particular con-cern to courts. On the one hand, the argument from accountability is capableof extending the judicial role beyond the narrow range of circumstances iden-tified by Dixon. On the other hand, the notion that there are circumstancesthat are particularly relevant to judicial capabilitiesçand which should there-fore prompt more searching review on the part of courtsçis capable of lendingstructure to the duty of accountability. Indeed, in the absence of such struc-ture, accountability is capable of lapsing into decision-makers simply explain-ing themselves without their explanations being subjected to appropriatelevels of scrutiny.37 This, in essence, points to the argument that is developedas this article progresses: social rights should be understood as generating astandard of reasonableness that is structured by principles that are indicativeof the types of circumstances where courts should be particularly willing tointervene in welfare decisions.

However, returning to Fredman’s argument, the issue that most clearly sep-arates her position from Dixon’s is participation. On the one hand, participationcould be understood in the sense outlined by O’Regan J in Mazibuko: constitu-tional social rights enable citizens to participate in the democratic process byholding government to account through the courts. Fredman’s argument goes

35 (2010) 4 SA 1 (CC) at para 71.36 ‘Law as Justification: Etienne Mureinik’s Conception of Legal Culture’ (1998) 14 South African

Journal on Human Rights 26.37 Fredman, supra n 11 at 104. Indeed, this appears to be one of the difficulties with the

Mazibuko decision. For discussion, see Wesson, ‘Reasonableness in Retreat? The Judgment ofthe South African Constitutional Court in Mazibuko v City of Johannesburg’ (2011) 11 HumanRights Law Review 390.

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further by invoking the notion of deliberative democracy, which ‘requires par-ties to come into the process prepared to produce reasons for their opinionswhich can convince others, but also prepared to be convinced themselves’.38

This is distinguishable from what Habermas terms ‘interest bargaining’ wherecommunication is undertaken for the purpose of forcing or inducing the op-ponent to accept one’s claim.39 Fredman’s contention is that courts are capableof perfecting democracy by steering decision-making away from interest bar-gaining and functioning as forums for deliberation.40 Admittedly, the adversar-ial judicial process might not appear to resemble a deliberative framework.However, human rights disputes can be fashioned in a way that transcendsthe bipolar nature of common law procedure. For example, ‘rules of standingand intervention can be adapted so that a wider range of perspectives is per-mitted to enter into the debate’.41

This rationale for constitutional social rights moves considerably beyond theargument from accountability. The accountability argument presupposes thatdemocratic legitimacy vests primarily in the legislature but courts are able toenhance the democratic process by providing a level of supervision. The argu-ment from deliberative democracy would seem to imply that courts are poten-tially themselves democratic institutions. If so, disagreements about welfareneed not be resolved primarily through the political process with courts adopt-ing a role that is generally secondary. Courts have sufficient democratic legit-imacy to themselves resolve such disputes. This may have consequences forDyzenhaus’s distinction between judicial standards that ask whether a decisionis justified or justifiable. Although this distinction is fundamental to thenotion of courts as forums of accountability, it would seem not to be requiredby the notion of courts as deliberative forums. The argument from deliberativedemocracy therefore implies a more assertive role for the courts in enforcingsocial rights than the argument from accountability. Admittedly, Fredmantakes care to argue that judges should not have the power to make primary de-cisions as to how resources should be allocated.42 However, Fredman also con-tends that the standard applied by courts in social rights cases shouldgenerally be one of proportionality which would require the state to demon-strate that ‘the steps it is taking are the most appropriate means of achievingthe right’.43 It may be that this approach sits uneasily with an understandingof the judicial role rooted more squarely in the value of accountability. The ap-proach developed in this article is that the courts should generally apply a

38 Fredman, supra n 11 at 105.39 Ibid. at 35.40 Ibid. at 105.41 Ibid. at 107.42 Fredman, supra n 3 at 317.43 Ibid.




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less demanding standard of reasonableness in social rights adjudication, withthe potential for this to harden into proportionality in particular types of cases.

The argument from deliberative democracy is ingenious for its subversion ofthe democratic objection to constitutional social rights. But it is submittedthat there are reasons to be wary of this approach. The key problem, asFredman notes, is the role of judges. Even if adjudication can be made resembledeliberation, why surrender the final decision to unelected officials? Theentire office of the judiciary is designed to insulate judges from democraticpressures as these are normally understood. In this light, it seems questionableto cast judges as agents of deliberative democracy. Put differently, if one wereto design deliberative forums to supplement the legislative process, it seemsdoubtful that they would be modelled on courts. Of course, these concernsmight be countered by noting that in jurisdictions such as the UK courts donot have the final say about rights disagreements. Instead, courts are onlyable to exercise a power of ‘weak form’ judicial review, which returns the re-sponsibility to Parliament to take further action to comply with its humanrights obligations. The decision is therefore binding on the parties before thecourt but the principle established by the case is ‘revisable in the long-termthrough the dynamic forum of deliberative democracy’.44 However, this imme-diately limits the reach of the argument to jurisdictions where ‘weak form’ asopposed to ‘strong form’ judicial review exists. In jurisdictions such as theUnited States and South Africa, courts are quite capable of entrenching prin-ciples that are only revisable through constitutional amendment or subsequentjudicial decision. Furthermore, the distinction between weak form and strongform judicial review should not be overstated. Even supporters of the distinct-iveness of ‘parliamentary’ bills of rights take the view that the best under-standing of the model is a presumption that legislatures will generally abideby judicial decisions.45 Fredman notes further concerns relating to expense,elitism and inaccessibility before concluding that the courts may need to berestructured ‘if they are to be taken seriously as deliberative fora’.46

For all of these reasons it is submitted that the argument from deliberativedemocracy should be approached with caution. However, the accountabilityrationale for social rights can be advanced independently of this argument.It is with the elaboration and development of this rationale that the remainderof the article is concerned.

44 Ibid. at 109.45 Gardbaum, ‘How Successful and Distinctive is the Human Rights Act? An Expatriate

Comparatist’s Assessment’ (2011) 74 Modern Law Review 195 at 204. For a sceptical viewabout the distinctiveness of parliamentary bills of rights, see Hiebert, ‘Parliamentary Bills ofRights: An Alternative Model?’ (2006) 69 Modern Law Review 7.

46 Fredman, supra n 11 at 107.

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3. The South African Constitutional Court and theStandard of Reasonableness

Against this background, the interest generated by the South AfricanConstitutional Court’s social rights jurisprudence is unsurprising. To under-stand why, we need to provide a brief overview of the South African socialrights jurisprudence. Of course, the majority of the Constitutional Court’ssocial rights judgments are now very well known and have been widely dis-cussed. It is therefore not my intention to provide a comprehensive overviewof these decisions.47 The article instead focuses on two issues: the standard ofreview employed by the Constitutional Court and the extent to which theCourt has been willing to give content to social rights. Greater attention isgiven to the more recent Mazibuko decision because it is less well known andbecause it is particularly relevant to the themes of the article. It should alsobe noted that the focus is on the Court’s adjudication of the positive duties topromote and fulfil social rights rather than the emerging and intriguing juris-prudence concerning the negative duty to respect social rights.48

The Constitutional Court’s first social rights decision was Soobramoney49 inwhich Chaskalson CJ purported to apply a rationality standard in upholdingthe decision of a state hospital to deny regular renal dialysis to the appellant.50

However, there are indications that the standard was somewhat more search-ing than bare rationality. For example, Chaskalson CJ was willing to considerthe less restrictive alternatives suggested by the appellantçsuch as the renalunit working overtimeçand explain why these were not viable.

Soobramoney was followed by Grootboom51 in which a group of destitutepeople claimed that their circumstances violated the right of access to ad-equate housing. In a departure from the rationality standard applied inSoobramoney the Court held that a reasonableness standard should be appliedin social rights cases. As for what reasonableness entails, the Court em-phasised that the ‘precise contours and content of the measures to be adoptedare primarily a matter for the legislature and executive’.52 The state housingprogramme was nevertheless found to be unreasonable to the extent that itfailed to make adequate provision for destitute people. Importantly, the Court

47 For an excellent overview, see Liebenberg, ‘South Africa: Adjudicating Social Rights under aTransformative Constitution’, in Langford (ed.), Social Rights Jurisprudence: Emerging Trends inInternational and Comparative Law (Cambridge: Cambridge University Press, 2009) 75.

48 For discussion, see Liebenberg, ibid. at 91^5; and Pillay, ‘Towards Effective Social andEconomic Rights Adjudication: The Role of Meaningful Engagement’ (2012) InternationalJournal of Constitutional Law (forthcoming).

49 Soobramoney v Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC).50 Chaskalson CJ in Soobramoney (ibid. at para 29) held that ‘[a] court will be slow to interfere

with rational decisions taken in good faith by the political organs and medical authoritieswhose responsibility it is to deal with such matters.’

51 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC).52 Ibid. at para 41.




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declined to adopt a ‘minimum core’ approach which would have entitled alldestitute individuals to claim assistance as a matter of right, finding that ithad insufficient information to determine the content of the minimum core.53

The Court instead found that reasonableness required the introduction ofa programme catering to destitute individuals, the exact form and extent ofwhich was left in the hands of the state.54

In Treatment Action Campaign (TAC)55 the Constitutional Court ordered thegovernment to make Nevirapine, an anti-retroviral drug that reducesmother-to-child transmission of HIV/AIDS, generally available in the publichealth sector. The Court reiterated its aversion to the minimum core, findingthat ‘courts are not institutionally equipped to make the wide-ranging factualand political enquiries necessary for determining what the minimum corestandards . . . should be’.56 In the view of the Court, the Constitution insteadcontemplated a ‘restrained and focused’ role for the judiciary in social rightsadjudication.57

The subsequent case of Khosa58 concerned a challenge to those provisionsof the Social Assistance Act 59 of 1992 that reserved welfare benefits solelyfor South African citizens. The applicants, who were permanent residents,argued that these provisions were inconsistent with the right of access tosocial security and the right to equality under the South African Bill ofRights. Mokgoro J held that an obligation not to unfairly discriminate is impli-cit in the reasonableness standard and that the exclusion of permanent resi-dents from welfare benefits was therefore unconstitutional. Mokgoro J tookcare to emphasise that reasonableness should not be conflated with rationalityreview.59 The intersection between the right of access to social security andthe right to equality also prompted the Court to inject a measure of proportion-ality into the reasonableness standard.60 Khosa arguably represents the most

53 Ibid. at paras 32^3.54 Grootboom is sometimes criticised on the basis that Irene Grootboom, in whose name the case

was brought, died years later without a home. See Joubert ‘Grootboom dies homeless andpenniless’ Mail & Guardian, 8 August 2008, available at: http://mg.co.za/article/2008-08-08-grootboom-dies-homeless-and-penniless [last accessed 28 March 2012]. However, thepositive consequences of the judgment should not be too lightly dismissed. Most notably, asa result of the judgment, chapter 12 of the National Housing Code now makes provision forpeople with urgent housing needs. That said, the state’s implementation of the judgment wasunacceptably tardy. See Liebenberg, supra n 47 at 99.

55 Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC).56 Ibid. at para 37.57 Ibid. at para 38.58 Khosa v Minister of Social Development 2004 (6) SA 505 (CC).59 Ibid. at para 67.60 Mokgoro J in Khosa (supra n 58 at para 67) held that in ‘considering whether that exclusion is

reasonable, it is relevant to have regard to the purpose served by social security, the impactof the exclusion on permanent residents and the relevance of the citizenship requirement tothat purpose.’

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intensive standard of review applied by the Constitutional Court in a socialrights decision.61

The Constitutional Court’s most recent social rights judgment of note con-cerning the duties to promote and fulfil is Mazibuko.62 In essence, Mazibukoconcerned the constitutionality of the installation of pre-paid water meters inPhiri, a poor suburb of Soweto. From a constitutional perspective, pre-paidmeters are of concern for various reasons, not least because of their potentialimpact on people who are unable to afford to purchase water. However, therewere factors that mitigated the apparent hardship of the policy, including thefact that in terms of the City of Johannesburg’s free basic water policy eachaccountholder in the City was entitled to six kilolitres of free water per month.

Before the Constitutional Court, the constitutionality of the installation ofpre-paid water meters and the free basic water policy were challenged on vari-ous grounds. For the purposes of this article, two issues are of particular inter-est. Firstly, it was argued that the Court should determine the content of theright to sufficient water by specifying that the quantity of water necessary fordignified life in areas such as Phiri is 50 litres per person per day. It was fur-ther argued that the Court should then determine whether the State hadacted reasonably in seeking to achieve the progressive realisation of this right.It is important to see that this is a different argument to the minimum core ar-gument that was rejected by the Constitutional Court in Grootboom and TAC.The minimum core entails that social rights generate a minimum level of pro-vision that the state should realise as a matter of priority. In Mazibuko, in con-trast, the argument was not that the Court should stipulate a minimum levelof provision but rather that it should specify the content of the right in its en-tirety. Nevertheless, the argument was rejected for essentially the samereason that the minimum core was rejected in Grootboom and TAC, namely,that it is ordinarily ‘institutionally inappropriate for a court to determine pre-cisely what the achievement of any particular social and economic right en-tails and what steps government should take to ensure the progressiverealisation of the right’.63

The second issue is the standard of review applied by the ConstitutionalCourt in Mazibuko. Like the Court’s previous decisions, Mazibuko is cast in thelanguage of reasonableness. However, there are indications that it is signifi-cantly more deferent than Grootboom,TAC and Khosa. For example, the Court’sreading of the Water Services Act 108 of 1997çwhich appeared to preclude

61 One indication of this was the Court’s willingness to review the social security budget to de-termine whether making provision for permanent residents was affordable: see Khosa, supran 58 at para 62.

62 Mazibuko v City of Johannesburg 2010 (4) SA 1 (CC). For further discussion, see Wesson,‘Reasonableness in Retreat?’ supra n 37. Another recent, albeit less significant, decision con-cerning positive obligations is Nokotyana and Others v Ekurhuleni Metropolitan Municipality2010 (4) BCLR 312 (CC).

63 Mazibuko, supra n 35 at para 61.




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pre-paid meters by stipulating procedural safeguards relating to notice andrepresentation in the limitation or discontinuation of water servicesçwashighly deferential and arguably implausible.64 The installation of pre-paidmeters in a predominantly black area, coupled to the long-term aim of extend-ing these to other predominantly black areas in Johannesburg, would alsoseem to raise concerns relating to indirect discrimination. However, the Courtheld that there were no equality concerns and that even if there were thesedid not amount to unfair discrimination.65 In contrast to Khosa, the Courtdid not treat the apparent intersection between a social right and the rightto equality as a reason to apply a heightened standard of review. Indeed, itis arguable that Mazibuko is even more deferent than Soobromoney, a caseoften regarded as a ‘false start’ to the Court’s social rights jurisprudence. InSoobramoney, the Court was at least willing to consider less restrictive alterna-tives to the challenged policy. In contrast, lacking from Mazibuko is any consid-eration of whether the state’s legitimate objectivesçto reduce unaccountedfor water, rehabilitate the water network, reduce water demand and improverates of payment66çcould have been pursued through means less restrictivethan the installation of pre-paid water meters.

Nevertheless, taken as a whole, the Constitutional Court’s social rights deci-sions have attracted widespread attention and clearly hold appeal. In an earlyendorsement, Cass Sunstein praised the Grootboom decision as representing ‘anovel and exceedingly promising approach to judicial protection of socioeco-nomic rights’.67 More recently, Malcolm Langford has argued that theHungarian Constitutional Court should ‘embrace a model of reasonablenessreview for all the dimensions of social rights . . .’68 In the UK, the most strikingexample of the influence of the Constitutional Court’s social rights decisionscan be found in the JCHR’s proposals for a British Bill of Rights. Drawing onthe South African case law, the JCHR advocates a reasonableness approachfor judicial enforcement of social rights. In order to ensure that courts followthis approach, the JCHR makes the innovative suggestion that additional word-ing should be included in the Bill of Rights so as to ensure that the judicialrole would be appropriately circumscribed.69 In essence, the JCHR recommendsthat the South African social rights jurisprudence should be crystallised in

64 Ibid. at paras 115^24. See further Wesson, supra n 37.65 Ibid. at paras 148^58.66 The City of Johannesburg was seeking to reduce unaccounted for water, rehabilitate the

water network, reduce water demand and improve rates of payment: see Mazibuko, ibid. atpara 13.

67 Designing Democracy:What Constitutions Do (Oxford: Oxford University Press, 2001) at 221.68 ‘Hungary: Social Rights or Market Redivivus?’ in Langford, supra n 47 at 266.69 See JCHR, supra n 2 at 43.

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the text of a British Bill of Rights.70 And, finally, there is the fact that theOptional Protocol to the ICESCR provides for a reasonableness test.71

In light of the discussion in the previous section, the reasons for the appealof the South African case law should be obvious. The reasonableness standardholds the promise of deepening accountability while also not placing courtsin the position of primary decision-makers. As Yacoob J held in Grootboom, a‘court considering reasonableness will not enquire whether other more desir-able or favourable measures could have been adopted, or whether publicmoney could have been better spent’.72 In endorsing Grootboom, Sunsteinnoted that the ‘virtue of the Court’s approach is that it is respectful of demo-cratic prerogatives and of the limited nature of public resources, while alsorequiring special deliberative attention to those whose minimal needs arenot being met’.73 Likewise, for the JCHR the advantage of the South Africanapproach is that implementation of social rights is ‘still primarily throughdemocratic processes rather than the courts, but with the possibility of adegree of judicial involvement in extreme cases . . .’74

However, the difficulty is that there is also a widely held view that reason-ableness ensures insufficient protection for social rights. Most obviously, onlya trickle of cases has emerged from the Constitutional Court.75 For some, theproblem with the reasonableness standard is its vagueness, which makes it dif-ficult for prospective social rights claimants to confidently assert that theirrights have been violated.76 Others argue that reasonableness accords insuffi-cient priority to those who are worst-off or whose needs are most urgent.77 Inthe face of these critiques, the majority of commentators have seen the solutionas lying in the Constitutional Court giving more detailed content to social

70 Although this is the JCHR’s ambition, it should be noted that the Committee’s reading of theSouth African case law is highly restrictive. Firstly, the Committee describes (at para 171)the Constitutional Court as having ‘made use of the English administrative law concept of‘‘unreasonableness’’, which has a very high threshold, to ensure that the courts will onlyvery rarely intervene to uphold social and economic rights’. From the above discussion, itshould be clear that reasonableness as applied by the Constitutional Court in social rights de-cisions is a more intensive standard thanWednesbury reasonableness review. As well as this,the JCHR states (at para 172): ‘Individuals do not have legally enforceable rights against thestate to full protection of the rights recognised in the Bill of Rights.’ There is nothing in theConstitutional Court’s case law to suggest that individuals are unable to approach the courtsto vindicate their social rights.

71 Article 8(4). For discussion, see Griffey, ‘The ‘‘Reasonableness’’ Test: Assessing Violations ofState Obligations under the Optional Protocol to the International Covenant on Economic,Social and Cultural Rights’ (2011) 11Human Rights Law Review 275.

72 Grootboom, supra n 51 at para 41.73 Sunstein, supra n 67 at 221.74 JCHR, supra n 2 at para 172.75 This point has been noted by both critics and proponents of constitutional social rights: see,

for example, Gearty, supra n 3 at 79; and Fredman, supra n 11 at 123.76 In an oft-quoted remark Bilchitz argues that reasonableness ‘seems to stand in for whatever

the court regards as desirable features of state policy’. See Bilchitz, ‘Towards a ReasonableApproach to the Minimum Core’ (2003) 19 South African Journal on Human Rights 1 at 10.

77 See, for example, Liebenberg, supra n 47.




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rights.78 In essence, the argument is that reasonableness threatens to drainsocial rights of their substantive content and reduce them to mere proceduralrequirements. It is also argued that the reasonableness standard cannot be co-herently applied in the absence of an analysis of the content of social rights.This is because the ‘reasonableness or otherwise of the government’s actionmust be determined in relation to whether its measures were reasonable at-tempts to realise progressively the right in question. Such an enquiry requirescontent to be given to the right’.79 It is to the suggestion that courts shouldaccord detailed substance to social rights that we now turn.

4. The Substance of Social Rights

The argument that the Constitutional Court should accord detailed substanceto social rights takes various forms. Most recently, as we saw in the discussionof Mazibuko, it was argued that the Court should determine the content of theright of access to sufficient water by specifying that the quantity of water ne-cessary for dignified life in areas such as Phiri is 50 litres per person per day.The argument was not that the Court should find that everyone in Phiri is im-mediately entitled to 50 litres of water per person per day, but rather that theCourt should evaluate whether the state had acted reasonably in seeking toprogressively make that level of provision available.

It is noteworthy that in some jurisdictions courts have been willing to deter-mine the content of social rights with a high level of specificity. The IndianSupreme Court provides a good example. In People’s Union for Civil Liberties vUnion of India, as part of the ‘right to food’ litigation, the Supreme Court heldthat every child in every government and government assisted primary schoolshould be provided with a cooked midday meal. The Court further specifiedthat the midday meal should ensure a minimum content of 300 calories and8^12 grams of protein each day of school for a minimum of 200 days. In thesame order, the Court stipulated that as part of the ‘Integrated ChildDevelopment Scheme’ each child up to six years of age should be providedwith 300 calories and 8^10 grams of protein; each adolescent girl 500 caloriesand 20^25 grams of protein; each pregnant woman and nursing mother 500

78 This argument has been advanced by many commentators: for a selection, see Bilchitz,‘Giving Socio-Economic Rights Teeth: The Minimum Core and its Importance’ (2002) 119South African Law Journal 484; Brand, ‘The Proceduralization of South AfricanSocio-Economic Rights Jurisprudence, or ‘‘What are Socio-Economic Rights For?’, in Bothaet al. (eds), Rights and Democracy in a Transformative Constitution (Stellenbosch: Sun Press,2003) 33; Pieterse, ‘Coming to Terms with the Judicial Enforcement of Socio-EconomicRights’ (2004) 20 South African Journal on Human Rights 1; and Davis, ‘AdjudicatingSocio-Economic Rights in the South African Constitution: Towards ‘‘Deference Lite’’’ (2006)22 South African Journal on Human Rights 301.

79 Bilchitz, ibid. at 8.

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calories and 20^25 grams of protein; and each malnourished child 600 cal-ories and 16^20 grams of protein.80

However, this was an approach that the South African Constitutional Courtdeclined to adopt in Mazibuko, finding that it would be inappropriate for theCourt to determine precisely what the achievement of a particular social rightentails. Although aspects of the Mazibuko decision are problematic, it is sub-mitted that the Court was correct to decline to determine the content of theright of access to sufficient water with this level of specificity. As O’Regan Jnoted, the expert evidence revealed numerous different answers regarding thequestion of what constitutes sufficient water and courts are ill-suited to resolvethese disagreements for both democratic and institutional reasons.81

Both of these concerns require elaboration. As far as the democratic objec-tion is concerned, the difficulty is that prescribing the exact content of socialrights would be tantamount to the judiciary determining the extent of thestate’s welfare obligations. However, this is precisely the issue that constitutesa key political dividing line in many democracies and which is thereforebetter settled through democratic politics. If the role of the courts in enforcingconstitutional social rights is best understood in terms of accountabilityçasopposed to, for example, deliberationçthen it is doubtful that they are the ap-propriate institutions to undertake this determination.

As well as this, there are concerns relating to expertise. These can be illu-strated with reference to the decisions of the High Court and Supreme Courtof Appeal in the Mazibuko litigation. In the High Court, Tsoka J accepted thatthe court was competent to ‘determine the basic water supply’,82 or the quan-tity of water that should be provided free of charge to every accountholder inthe City of Johannesburg. At the time of the judgment, the free basic watersupply was six kilolitres per household per month. In a household of eightpeople this amounts to 25 litres per person per day. Justice Tsoka found thatthis amount of water was inadequate to meet the basic needs of Phiri residents,especially given that many households in Phiri contain more than eightpeople. Drawing on expert evidence presented to the court, Tsoka J held thatthe City of Johannesburg should instead provide the residents of Phiri with50 litres of water per person per day.

However, in the Supreme Court of Appeal it emerged that the expert evi-dence on which Tsoka J relied was not uncontested. Further expert evidencewas adduced claiming that 42 litres per person per day would constitute

80 Order dated 28 November 2001, in W.P.(C) No 196/2001 (People’s Union for Civil Liberties vUnion of India). The orders issued by the Supreme Court as part of this litigation are availableat: www.righttofoodindia.org/orders/nov28.html [last accessed 28 March 2012]. For a generaldiscussion of the Supreme Court’s social rights case law, see Muralidhar, ‘India: TheExpectations and Challenges of Judicial Enforcement of Social Rights’ in Langford, supra n47 at 102.

81 Mazibuko, supra n 35 at para 62.82 2008 (4) SA 471 (W) at para 133.




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sufficient water within the meaning of section 27 of the Constitution. The factthat this evidence was not placed before the High Court is troubling. It sug-gests that courts will frequently not have the full range of evidence placedbefore them in light of which an informed decision about the content of agiven social right can be reached. Of course, members of the legislative and ex-ecutive branches of government might also reach decisions about the contentof social rights without being appraised of all relevant information. But legisla-tive and executive decision-makers are able to review and if necessary setaside their decisions more easily than courts. Such decision-makers do not op-erate a system of precedent. Nor do they have to wait to be approached by a liti-gant before departing from an earlier decision.

In the event, the Supreme Court of Appeal opted for the lower amount of 42litres per person per day, finding that on the papers there was no basis for pre-ferring the evidence of one of the experts to that of the other.83 It is submittedthat this rather arbitrary determination underscores the point that the judi-ciary is not the branch of government that is best placed to determine theexact content of social rights.

Of course, none of this should be taken to mean that social rights should notbe accorded content or that their content raises non-justiciable issues. In itsGeneral Comment on the Right to Water, the United Nations Committee onEconomic, Social and Cultural Rights (CESCR) declined to give exact contentto the right to water, stating that ‘the adequacy of water may vary accordingto different conditions’.84 However, the Committee stated that three factorsapply in all circumstances viz availability, quality and accessibility.85 There isno reason why courts cannot review legislative and executive determinationsof the content of social rights in light of principles such as these, which couldform part of the reasonableness standard. Indeed, in Mazibuko O’Regan J waswilling to consider whether the free basic water allowance was sufficient not-withstanding the Constitutional Court’s reluctance to itself give content to theright.86 Nevertheless, it should be clear that on this issue the Court regardedits jurisdiction as supervisory and took care not to place itself in the positionof primary decision-maker. It should also be clear that this amounts to a coher-ent application of reasonableness, notwithstanding Bilchitz’s argument thatthe reasonableness of social programmes can only be determined wherecourts are themselves willing to give content to social rights.

The Constitutional Court has also been urged to give content to social rightsthrough the concept of the minimum core. Given the extensive literature on

83 The City of Johannesburg v Mazibuko 2009 (3) SA 592 (SCA) at para 24.84 General Comment No 15: The right to water (arts 11 and 12), 20 January 2003, E/C.12/2002/11;

10 IHRR 303 (2002) at para 12.85 Ibid.86 Mazibuko, supra n 35 at paras 86^9.

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this topic,87 it is not my intention to revisit this debate in its entirety. However,I will attempt to indicate how the minimum core is relevant to the themes ofthis article. The minimum core has its origins in the general comments of theCESCR.88 Although subject to some ambiguities,89 its essence is that eventhough social rights are subject to progressive realisation there is a minimumlevel of provision that should be made available on an immediate or prioritisedbasis. The minimum core is generally understood as giving rise to individualentitlements to this basic level of provision.90 Furthermore, any attempts toderogate from the minimum core should trigger a heightened level ofjustification.91

The minimum core therefore embodies an idea of prioritisation in the real-isation of social rights. The justification for this that has been most commonlyadvanced is that certain needs are more urgent than others and the stateshould therefore cater to these needs first before moving onto other less press-ing needs.92 This can be illustrated with reference to the right to housing. Incircumstances where some people are destitute, advocates of the minimumcore argue that the state should not expend resources on, for example, housingsubsidies that are likely only to benefit people who already have some form ofshelter. Rather, the state should initially ensure that everyone is providedwith a basic level of shelter before moving on to other less urgent needs.

For its proponents, the minimum core holds various attractions, one ofwhich is that it would seem to require the judiciary to accord substance tosocial rights by specifying the content of the minimum core. Nevertheless, itis an approach that the Constitutional Court has steadfastly refused to adopt.This has led to widespread debate in the South African academic communityand beyond. However, in my view the Constitutional Court’s wariness of theconcept is justified. Of course, this might be seen as a debate that has greaterresonance in the South African and developing world context. In a jurisdictionwhere there is widespread deprivation and limited state capacity it is perhaps

87 In the South African context, the foremost proponent of the minimum core is Bilchitz; seeespecially Bilchitz, Poverty and Fundamental Rights: The Justification and Enforcement ofSocio-economic Rights (Oxford: Oxford University Press, 2007).

88 See in particular General Comment No 3: The nature of States parties obligations (art. 2, para1), 14 December 1990, E/1991/23; 1-1 IHRR 6 (1994) at para 10.

89 For discussion, see Langford and King, ‘Committee on Economic, Social and Cultural Rights’in Langford, supra n 47 at 477.

90 See, for example, General Comment No15, supra n 84 at para 44. Notwithstanding this, someminimum core advocates appear to have developed doubts about whether the minimumcore should be understood as generating individual entitlements. Bilchitz, supra n 87 at204, for example, writes that ‘it is not desirable to adopt an overly rigid policy in relation toindividual relief’ and ‘the relief granted should not generally involve any special orders to theindividuals who brought the case; rather, it should seek to indirectly benefit the litigantsthrough the general order that is made’. Of course, on this approach the distinction betweenGrootboom and the minimum core becomes less clear.

91 Fredman, supra n 11 at 84^7.92 See generally Bilchitz, supra n 87.




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understandable for the Constitutional Court not to jeopardise its legitimacy byhanding down orders that are unlikely to be fulfilled. In the developed worldone might argue that the minimum core has generally already been realisedthrough the welfare state.93

However, it is submitted that there are difficulties with the concept thatapply even in jurisdictions such as the UK. The key problem is that in certaincontexts the content of the minimum core is deeply ambiguous. By way of il-lustration, the minimum core of the right of access to housing initially seemsfairly straightforward. Here the minimum core corresponds to that which isnecessary to meet the basic needs of those who are destitute. But the core con-tent of rights such as health and social security is less obvious. This is becausein these contexts those who are worst-off have exceptionally diverse andfar-reaching needs. In respect of the right to health, the category includes notonly people without access to primary healthcare but also people whose livesare threatened by illnesses that require on-going and expensive medical treat-ment. Attempting to meet all of these needs as a matter of individual entitle-ment might seem to result in an elaborate and ultimately unworkableobligation.

Nevertheless, this is an approach that courts have been willing to take insome jurisdictions. The Colombian Constitutional Court, for example, has heldthat in exceptional circumstances the right to social security is not a program-matic right but is capable of immediate enforcement on an individualisedbasis. According to Magdalena Sepu¤ lveda, this occurs when individuals are ina position of ‘manifest vulnerability’ (debilidad manifiesta) in which the immedi-ate protection of their rights is required to prevent jeopardy to their dignifiedexistence.94 In such situations, the Court will order the State to comply imme-diately with its duty to provide social assistance. For example, in what isdescribed as a ‘landmark decision’,95 the Court ordered that a 63 year old manliving in absolute poverty, without contact with his family, should be providedwith economic assistance so that he could undergo an eye operation thatwould enable him to recover his sight.

The Colombian Constitutional Court has taken a similar approach to theright to health. Although the right is generally progressive in nature itmay crystallise into an immediate entitlement where there is a nexus with a

93 See, for example, Fredman, supra n 3 at 317.94 ‘Colombia:The Constitutional Court’s Role in Addressing Social Injustice’ in Langford, supra n

47 at 144 and 150. The test can be stated in more detailed form as follows: (a) the individualis in a situation of manifest vulnerability (debilidad manifiesta) because of his economic, phys-ical of mental situation; (b) there is no possibility for the individual or his family to takeaction to remedy the situation; (c) the State has the possibility to remedy or mitigate his con-dition; and (d) the State’s inaction or omission will affect the individual’s ability to enjoy min-imum conditions of a dignified life. See, for example,T-533/92.

95 Ibid.

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fundamental right such as life, integrity or dignity.96 On this basis, the Courthas in several cases ordered social security entities and private health pro-viders to make treatment available to HIV/AIDS patients.97 An especially assert-ive approach is taken where the Court is concerned with the healthcare rightsof children. In the so-called ‘overseas treatment’ cases, the Court has orderedpublic and private healthcare providers to cover the expenses involved inundertaking treatment outside Colombia where no national treatment is avail-able. For example, in a 1995 decision the Court ordered that a girl who sufferedfrom leukaemia and needed a complex transplant that could not be providedin Colombia should be provided with treatment at a specialised clinic in theUnited States.98

A similarly expansive approach has been taken by courts adjudicating theright to health under the Brazilian Federal Constitution. In a seminal 1992 de-cision the Supreme Federal Tribunal held as follows:

The right to health ^ as well as a fundamental right of all individuals ^represents an inextricable constitutional consequence of the right tolife . . .The interpretation of a programmatic norm cannot transform itinto a toothless constitutional promise . . .Between protecting the inviol-ability of the right to life, an inalienable fundamental right guaranteedby the Constitution itself (article 5, main clause) or ensuring, againstthis fundamental prerogative, a financial and secondary interest of thestate, I believe ^ once this dilemma is established ^ ethical and legal rea-sons impose on the judge one single and possible option: unswerving re-spect for life.99

The result of this judgment has been an approach characterised by a ‘preva-lence of individualized claims demanding curative medical treatment (mostoften drugs) and an extremely high success rate for the litigant’.100 Right tohealth litigation has spread from HIV/AIDS cases in the late 1990s to multipleother areas, including diabetes, Parkinson’s disease, Alzheimer’s disease, hepa-titis C and multiple sclerosis.101

96 Ibid. at 152.97 Ibid. at 157. The Court has even ordered that Viagra be provided to a claimant on the basis that

a man’s sexual function is so vital that it forms part of his dignified life: see T-926/99.98 T-165/95. The test applied by the Court in determining whether overseas treatment should be

made available may be stated as follows: (a) there are circumstances of extreme gravity thataffect the life of the patient; (b) the required medical treatment cannot be undertaken inColumbia; (c) there is medical certification that the treatment would be effective in the par-ticular circumstances of the patient; and (d) the individual is unable to cover the cost, butthe State has the resources available to do so. See Sepu¤ lveda, ‘Colombia: The ConstitutionalCourt’s Role in Addressing Social Injustice’ in Langford, supra n 47 at 153.

99 RE 271.286 AgR-RS (2000), Relator Min. Celso de Mello. Quoted in Ferraz ‘The Right to Healthin the Courts of Brazil:Worsening Health Inequities?’ (2009) 11Health and Human Rights 33.

100 Ibid. at 34.101 Ibid. at 35.




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The jurisprudence developed by the Colombian Constitutional Court and theBrazilian courts might seem to represent an expansive minimum core ap-proach, in terms of which all urgent needs are met as a matter of immediate in-dividual entitlement. To what extent, then, does the case law of these courtsconstitute an argument for a similar approach on the part of the SouthAfrican Constitutional Court? Barriers of language and culture mean thatEnglish speaking common lawyers such as myself should approach the caselaw of these courts with some caution. Nevertheless, it is submitted that thereare reasons for concern. The first is the apparent indifference of these courtsto the financial implications of their judgments. Commenting on theColombian Constitutional Court, Sepu¤ lveda writes that ‘for the ColombianConstitutional Court, when life is in danger, the right to health is justiciable,notwithstanding the budgetary issues that enforcement of the right mayraise’.102 Furthermore, although ‘these judgments have significant budgetaryimplications, the Court makes an effort not to fall into a utilitarian calculus,but rather to place the protection of the individual dignity at the centre of itsdecisions’.103 In a similar vein, Flavia Piovesan argues that the judgments ofthe Brazilian courts ‘illustrate a clear preference for the respect for life as aninalienable subjective right ensured by the Constitution itself rather than forthe financial or other secondary interests of the State’.104

An initial difficulty with this approach is that under the ICESCR and manyother human rights instruments social rights are expressly limited by theavailability of resources, at least in respect of the duty to promote and fulfilsocial rights. The resource implications of a social rights judgment shouldtherefore not be treated as a matter of indifference. Furthermore, social rightsare qualified by the availability of resources for a good reason, which is thatin reality resources are not unlimited.105 Ferraz has developed an especiallytrenchant critique of the case law of the Brazilian courts. As noted, theBrazilian case law is characterised by a prevalence of individualised claims de-manding curative treatment and a high success rate for the litigant. To putthe extent of litigation in perspective, in 2008 the state of Sa‹ o Paulo spent ap-proximately US $200 million to comply with court orders benefiting

102 Sepu¤ lveda, supra n 98.103 Ibid. at 154. Sepu¤ lveda’s suggestion that taking account of budgetary implications in adjudi-

cating social rights would somehow amount to a utilitarian approach to human rights is mis-conceived. With some exceptions, most accounts of human rights allow that rights can belimited by countervailing considerations provided that these are sufficiently compelling. Autilitarian approach is avoided not by ignoring budgetary implications but rather by ensuringthat rights are accorded appropriate weight in the court’s deliberations. This point is returnedto below.

104 Piovesan, ‘Brazil: Impact and Challenges of Social Rights in the Courts’ in Langford, supran 47 at 182, 185.

105 Nevertheless, in a vaguely surreal passage Piovesan (ibid. at 185) appears to criticise what heterms the ‘classical liberal approach’ for postulating that ‘the budget is limited, finite and in-sufficient to guarantee full economic support for all public policies’.

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approximately 35000 successful claimants. In Ferraz’s view, given that re-sources are always scarce in relation to the health needs of the population asa whole this approach can only be sustained at the expense of universality.The individuals who are able to access the judiciary are relatively privilegedwith the result that right to health litigation may well be worsening healthinequities in Brazil as resources are diverted from larger and less advantagedgroups who cannot easily access the courts to protect their interests.106

In this light, an expansive minimum core approach, which would requirethe state to meet all urgent needs as a matter of individual entitlement, seemsinadvisable. Some minimum core proponents have attempted to overcome thisdifficulty by advocating a ‘pragmatic’ rather than a ‘principled’ approach to thecontent of the minimum core. By this argument, it is possible to determinethe core content of rights such as health through a ‘conglomeration of . . . prin-cipled and pragmatic considerations’.107 It is no doubt correct that the contentof social rights should be determined by taking a range of factors into account.But it is doubtful that the judiciary is the institution that is best situated toundertake this inquiry. As the Constitutional Court emphasised in TreatmentAction Campaign, ‘courts are not institutionally equipped to make thewide-ranging factual and political enquiries necessary for determining whatthe minimum core standards should be . . .’108

Of course, even if it is conceded that the minimum core should be aban-doned for certain rights it might be argued that it should be retained forrights where its content is apparently more straightforward. However, herethe problem is how to determine the threshold between core and non-coreneeds. One possibility is to correlate the minimum core with that which is ne-cessary for survival.109 The minimum core of the right to housing is thereforesimply what is needed to ensure that destitute people do not perish. However,drawing on the work of Amartya Sen, KatharineYoung notes that people havebeen known to survive on very little.110 On this account, the minimum coretherefore threatens to become excessively minimal or under inclusive.111 Onthe other hand, if a more generous approach is takençlinking the minimumcore to notions of dignity, for example112çthe concept threatens to becomeextensive or over inclusive in a manner that might undermine its intuitiveappeal, at least in the developing world where resources are scarce. It is not

106 Ferraz, supra n 99.107 Bilchitz, supra n 87 at 224.108 Supra n 55 at para 37.109 See generally Bilchitz, supra n 87; and Fredman, supra n 11 at 86.110 ‘The Minimum Core of Economic and Social Rights: A Concept in Search of Content’ (2008)

33 Yale Journal of International Law 113 at 131.111 Liebenberg, ‘Poverty and Fundamental Rights: The Justification and Enforcement of

Socio-Economic Rights’ (Review) (2007) 124 South African Law Journal 882 at 887.112 InTreatment Action Campaign, supra n 55 at para 28, the amicus argued that no one should be

condemned to a life below the level of ‘dignified human existence.’ For further discussion ofthis issue, see Dixon, supra n 28.




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clear that we should look to courts in the first place to resolve thesedisagreements.

However, none of this should be taken to mean that a court tasked withenforcing social rights should not be responsive to needs that are particularlyurgent. The question is how this might be achieved without the level of judicialprescription regarding the content of social rights that appears to be inherentin the concept of the minimum core.

5. Giving Structure to Accountability

The issue for the remainder of this article is therefore how to develop the rea-sonableness standard without compromising its democratic appeal. Thestarting point for this discussion is the observation that the intensity withwhich the reasonableness standard has been applied by the South AfricanConstitutional Court has varied significantly. Moreover, it has done so in amanner that appears to be neither predictable nor principled. It is difficult toreconcile the proportionality standard applied in Khosa with the excessivelydeferent standard applied in Mazibuko. The article therefore recommendsgreater predictability in the intensity with which the reasonableness standardis applied, thereby meeting the objection that reasonableness is inherentlyvague and unpredictable. It should be emphasised that it is not my view thatthe standard applied in social rights adjudication should generally be search-ing or invariably be set at the level of proportionality.113 It seems ill advised toadopt an approach whereby every welfare allocation is potentially subject toclose judicial scrutiny. The standard of review in social rights cases should gen-erally be set at a relatively deferent level. However, the reasonableness standardshould also be structured by principles that are indicative of the types of cir-cumstances that should be of particular concern to courts. Where one ormore of these principles is implicated in a case that should act as a trigger fora more searching inquiry on the part of the court.

What principles then should determine the intensity with which the rea-sonableness standard is applied? At this point, it is necessary to draw a distinc-tion between principles of deference that apply in the adjudication of allrights, and principles that are specific to particular rights. As far as deferenceis concerned, there has been considerable discussion of this issue in UK publiclaw in recent years. While there is no clear consensus, a prevalent view isthat courts need to take various principles into account, although there is no‘magic formula’ to determine their precise interaction in a given case. AileenKavanagh, for example, suggests that the following factors should be weighed

113 For a contrary view, see Fredman, supra n 3.

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by the courts: expertise, competence and democratic legitimacy.114 For JeffKing, the principles that should be considered are polycentricity, expertise,flexibility and democratic legitimacy.115 However, it is worth noting that somecommentators reject certain of these factors116 while others reject the needfor a distinct concept of deference altogether.117

It is not my intention to contribute to the extensive literature on this issue.Instead, my interest lies in the observation that these general principles of def-erence interact with principles specific to particular human rights. For ex-ample, in the area of freedom of expression it is well established that politicalspeech is accorded a high level of protection.118 This principle may interactwith more general principles of deference in determining the court’s willing-ness to intervene in a particular case. Again there is no magic formula to deter-mine the interaction between the principles specific to the right or betweenthese principles and the general principles of deference. In all likelihood a par-ticular principle, or set of principles, is likely to be more prominent in a givencase and determine the intensity of the standard of review applied by thecourts. As for the principles that can be identified with social rights, the follow-ing non-exhaustive list is proposed. Far more could, of course, be said abouteach of these principles. Indeed, it is possible that each could form the basis ofan article in its own right. Within the scope of this article, my objective issimply to provide an overview of the issues that each of the principles entails.

A. The Position of the Claimant in Society

This principle concerns whether the claimant occupies a disadvantaged pos-ition in society and is centrally concerned with equality. If the claimant is mar-ginalisedçdue to poverty, stereotyping, a lack of political representation, orsome other factorçthe courts should be concerned to establish that he orshe has not been overlooked or neglected by the political process. The principletherefore embodies a procedural commitment to equality in the sense of creat-ing the ‘procedural means to free up the process of representation, and makesure that all are in fact accorded equal regard and respect’.119 As discussed in

114 ‘Deference or Defiance? The Limits of the Judicial Role in Constitutional Adjudication’, inHuscroft (ed.), Expounding the Constitution: Essays in Constitutional Theory (New York:Cambridge University Press, 2008) 184.

115 King, ‘Institutional Approaches to Judicial Restraint’ (2008) 28 Oxford Journal of Legal Studies409.

116 Jowell rejects superior democratic legitimacy as a basis for deference. See ‘Judicial Deference:Civility, Servility or Institutional Capacity?’ (2003) Public Law 592.

117 Allan, ‘Human Rights and Judicial Review: A Critique of Due Deference’ (2006) 65 CambridgeLaw Journal 671.

118 See, for example, Bowman v United Kingdom 1998-I; 26 EHRR 1 at para 42.119 Fredman, n 11 at 110. The classic account of this justification for judicial review is Ely,

Democracy and Distrust: A Theory of Judicial Review (Cambridge/London: Harvard UniversityPress, 1980).




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the first part of this article, this is a key rationale for according courts jurisdic-tion to decide social rights claims in the first place. Courts should thereforeregard themselves as competent to closely scrutinise decisions where this prin-ciple is implicated.

The principle also implicates concerns relating to substantive equality. Boththe Canadian Supreme Court and South African Constitutional Court haveadopted an overtly substantive approach towards the development of theirequality jurisprudence and both identify the position of the claimant in societyas a key factor. For both courts, government action that entrenchespre-existing disadvantageçor worsens the position of a disadvantaged individ-ual or groupçis unlikely to be upheld whereas measures that promote disad-vantaged groups are likely to be endorsed.120 This relates to the underlyinggoal of substantive equality, which is to better the position of worse-off sectorsof society.121

The Khosa judgment provides a useful illustration of both the proceduraland substantive dimensions of the principle under discussion. In finding thatpermanent residents should be entitled to social security benefits, Mokgoro Jemphasised that foreign citizens are a minority in all countries and typicallyhave little political voice.122 Citizenship should therefore be regarded as aground of discrimination, analogous to those enumerated in the Bill ofRights.123 Turning to more substantive concerns, Mokgoro J held that theimpact of excluding permanent residents from social security programmeswas severe and forced them into relationships of dependency.124 The cumula-tive result was that the legislation unfairly discriminated against permanentresidents.

Of course, none of this should be taken to mean that the mere fact of vulner-ability or disadvantage should ensure success in a social rights claim. It is con-ceivable that someone who is otherwise disadvantaged might not have a validclaim in a given case. But for the reasons outlined courts should look more clo-sely at cases where this principle is implicated.

B. The Urgency of the Claimant’s Needs

At first glance, this principle might not appear to be particularly useful. Afterall, many social rights cases might involve a degree of urgency. However, the

120 Law v Canada [1999] 1 SCR 497 at para 88; and President of the Republic of South Africa v Hugo1997 (4) SA 1 (CC).

121 See further Wesson, supra n 32.122 Supra n 58 at para 71.123 The Constitutional Court had previously recognised citizenship as an analogous ground of

discrimination in Larbi-Odam v Member of the Executive Council for Education (North-WestProvince) 1998 (1) SA 745 (CC).

124 Supra n 58 at para 80.

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principle is intended to prompt more searching review in cases where theclaimant’s needs are particularly urgent. The principle will frequently intersectwith the principle discussed above in that those who occupy a disadvantagedposition in society will often also have urgent needs. The Grootboom case pro-vides an obvious example. However, the principles are also logically distinctin that it is possible to occupy a marginalised position in society without ur-gently requiring state assistance and vice versa. It may be that the principlerelating to the position of the claimant in society is concerned with equalitywhereas the principle under discussion expresses a notion of priority i.e. thefocus is not on the relative position of the claimant in society but rather the ob-jective urgency of their needs.125

Apart from Grootboom the principle also finds some expression in Englishpublic law. In Rodgers126 the claimant, who suffered from breast cancer, wasrefused funding for the drug Herceptin which might have been effective inher case. In the Court of Appeal Sir Anthony Clarke MR found that given thatthis was a life or death decision for the claimant it was ‘appropriate for thecourt to subject the decision to refuse funding for the treatment . . . to rigorousscrutiny’.127 Admittedly this was because the Swindon PCT had opted to makeHerceptin available without regard to cost. Had Herceptin been made availablesubject to the availability of resources then the leading case of Ex p B128

would have had application and it would have been ‘very difficult, if not impos-sible, to say that such a policy was irrational’.129 In effect, the principle that dis-cretionary resource allocations are non-justiciable would have negated theprinciple that life and death decisions should be subjected to rigorous scrutiny.Of course, in jurisdictions where social rights are constitutionally protecteddiscretionary resource allocations need not be treated as non-justiciablewhich means that courts are able to give greater weight to the principle ex-pressed in Rodgers.

A further question is how this principle differs from the minimum core ap-proach discussed above. In one sense, the principle under discussion mightseem to require a more expansive approach than the minimum core. A key ob-jection to the minimum core is how to determine which set of needs shouldcomprise the minimum core in areas such as healthcare where there are mul-tiple competing sets of urgent needs. The suggested approach would acknow-ledge that urgent needs should generally invite a searching response from thecourts. However, in another sense the approach advocated would be more re-strictive than the minimum core. This is because it would also acknowledge

125 Parfit, ‘Equality or Priority?’, in Clayton and Williams (eds), The Ideal of Equality (London:MacMillan Press Ltd, 2000) 81.

126 R (on the application of Rodgers) v Swindon Primary Care Trust [2006] 1WLR 2649.127 Ibid. at para 56.128 R v Cambridge Health Authority, Ex p B [1995] 2 All ER 129 (CA).129 Ibid. at para 58.




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that the principle that urgent needs should prompt more searching scrutiny onthe part of the courts may be balanced against general principles of deferencesuch as polycentricity. Indeed, an awareness of polycentricity as a principle ofdeference seems to be precisely what is absent from the Colombian andBrazilian cases surveyed above. In those decisions, the courts appear to disre-gard the budgetary implications of their decisions, reasoning that the dignityof the individual is paramount. It is doubtful that such an approach is sustain-able. In cases concerning urgent needs, such as Soobramoney, the response ofthe courts needs to be shaped by an awareness of the urgency of the claimant’sneeds as well as the polycentric dimensions of the case.

There are other factors that distinguish the approach under discussion fromthe minimum core. Proponents of the minimum core typically envisagecourts prescribing the content of the minimum level of provision that shouldbe made generally available. The recommended approach does not ask courtsto prescribe the substance of the state’s obligations in this way. Instead, it re-quires that courts apply a heightened level of review in cases where the claim-ant’s needs are especially urgent, subject to the proviso that there may becountervailing principles of deference that counsel a more restrained ap-proach. This is consistent with a ‘collaborative’approach towards the fulfilmentof social rights, which leaves the executive and legislative branches with dis-cretion about how best to remedy the violation, thereby allowing the contentof the right to emerge through a ‘dialogue’ between the different branches ofgovernment.130

A further distinction is that the minimum core is typically regarded as gen-erating individual entitlements to a specified level of provision. This is the ap-proach taken by the Brazilian courts in right to health litigation, where thecase law is characterised by individualised claims to curative treatment and ahigh success rate for litigants. As discussed, this approach may well be increas-ing health inequities in Brazil as the relatively privileged claimants who areable to access the judiciary divert resources from less advantaged sectors of so-ciety. The suggested approach, in contrast, does not require that social rightsbe individualised in this manner.Where there is a group whose needs are par-ticularly urgent the court may, as in Grootboom, order the state to formulate aprogramme catering to the needs of such individuals, without specifying theexact form of the programme. This is also consistent with a collaborative ap-proach towards the fulfilment of social rights, which may be usefully aug-mented through the use of supervisory jurisdiction.131

130 Steinberg, ‘Can Reasonableness Protect the Poor? A Review of South Africa’s Socio-economicRights Jurisprudence’ (2006) 123 South African Law Journal 264.

131 See Wesson, supra n 32.

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C. Intersections Between Social Rights and Other Rights

Social rights claims frequently intersect with alleged violations of other rights.This is apparent from the experience of the HRA in the UK, where civil andpolitical rights such as the right not to be subjected to torture or inhuman ordegrading treatment or punishment,132 the right to respect for private andfamily life133 and the prohibition on discrimination134 have been used to lever-age what are in part social rights claims.135

It is submitted that such intersections should trigger heightened scrutiny onthe part of courts. The reason should be obvious: courts should be particularlyconcerned in cases where there appear to be multiple rights violations. Thisprinciple finds expression in the South African case of Khosa where the inter-section between the right of access to social security and the right to equalityprompted the Constitutional Court to harden the reasonableness standardinto proportionality review. In Mazibuko, in contrast, the Court found that thechallenged policy did not raise equality concerns and that even if these werepresent they did not amount to unfair discrimination. In reaching the latterconclusion the Court applied a highly deferent standard of review.136 Thisunderscores the key contention of the article, which is that the reasonablenessstandard should be structured by principles so as to ensure greater predictabil-ity and consistency in its application.

D. Retrogression

In General Comment 3 the CESCR states that the obligation to progressivelyrealise social rights entails that ‘any deliberately retrogressive measures inthat regard would require the most careful consideration and would need tobe fully justified by reference to the totality of the rights provided for in theCovenant and in the context of the full use of the maximum availableresources’.137

Discussion of retrogression might seem out of place in this article, given thatthe focus is on the state’s positive obligations to promote and fulfil socialrights as opposed to its negative obligation to respect social rights. However, itis by no means clear that the duty to respect social rights is synonymouswith the principle of non-retrogression. There is no doubt that the duty to re-spect social rights is engaged when, for example, someone is unlawfullyevicted from their home.138 But it is less clear that a reduction in welfare

132 Article 3. See Limbuela, supra n 30.133 Article 8. SeeAnufrijeva v Southwark London Borough Council [2003] EWCA Civ 1406.134 Article 14. See Ghaidan v Godin-Mendoza [2004] UKHL 30.135 See further King ‘United Kingdom’, in Langford, supra n 47 at 276.136 See further Wesson, supra n 37.137 General Comment No 3, supra n 88 at para 9.138 See the South African jurisprudence in this regard, discussed in Liebenberg, supra n 47 at 91.




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provision necessarily constitutes a violation of the obligation to respect socialrights. It may be that the state’s actions in this regard are better understood interms of the duty to promote and fulfil social rights, or as relating to theduties to promote and fulfil and respect rights.139 For these reasons, it seemedprudent to include some discussion of retrogression within this article.

There is unfortunately not a great deal of case law on the duty of non-retrogression. However, one well-known example emanates from Hungarywhere the Hungarian Constitutional Court struck down as unconstitutional le-gislation that converted a system of family allowances and maternity benefitsinto a needs-based system.140 The measures formed part of legislation intro-duced under pressure from the International Monetary Fund and the decisionhas consequently been celebrated by left-leaning commentators.141 Despitethis, it is not clear that the judgment clarifies much about the duty ofnon-retrogression. As Langford notes, the decision turns primarily upon theconcepts of legal certainty and property, as opposed to the right to social secur-ity.142 This leads Langford to criticise the Court for seeking to protect socialrights in a ‘backhanded’ way through implied rights and property rights.143

The Court was also concerned with the procedure whereby the reforms wereintroduced and in particular the absence of a transitional period. However,the Court’s procedural concerns appear not to form part of a developed conceptof non-retrogression in the context of social rights.

Returning to General Comment 3, the gist of the CESCR’s comments wouldappear to be that deliberately retrogressive steps impose a heightened burdenof accountability on the state. However, it should be noted that this is not tan-tamount to courts prescribing the extent of the state’s welfare obligations. Theprinciple instead creates a presumption against erosion of existing levels ofwelfare provision. There is both a procedural and substantive dimension tothe state’s obligations in these circumstances. The reference to ‘most carefulconsideration’ implies a decision-making process: the state should fully con-sider the impact of its policies.144 From a substantive point of view the statemust point to an objective that justifies the measures adopted.

This principle may, of course, be offset by principles of deference. Forinstance, as far as substantive justifications for retrogressive measures areconcerned, courts are highly unlikely to second-guess government policy

139 For discussion of these issues, see Langford and King, supra n 89 at 484.140 Decision 43/1995, 30 June 1995.141 For example, see O’Connell, ‘The Death of Socio-Economic Rights’ (2011) 74 Modern Law

Review 553 footnote 136. For a more critical view, see Sajo, ‘How the Rule of Law KilledHungarianWelfare Reform’ (1996) East European Constitutional Review 31.

142 Langford, supra n 47 at 256.143 Ibid. at 259.144 Nolan, ‘Is the government’s austerity programme breaking human rights law?’ 1 March

2011, available at: http://www.opendemocracy.net/ourkingdom/aoife-nolan/is-governments-austerity-programme-breaking-human-rights-law [last accessed 28 March 2012].

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regarding the pace and scale of spending cuts necessitated by a substantialbudget deficit. It may therefore be more profitable to focus on the state’s proced-ural obligations in these circumstances. That said, it is also possible to envisagecases in which the principle of non-retrogression is in fact strengthenedthrough interaction with other principles pertaining to social rights, such asthe principles regarding urgency and the position of the claimant in society.One approach might be that the greater the extent to which these principlesare implicated by the retrogressive measure, the more searching the Court’sscrutiny should become. A degree of flexibility is needed as the duty ofnon-retrogression should not constitute a rigid ‘ratchet’ mechanism that pre-cludes all welfare reform. Of the four principles discussed in this section, theprinciple of non-retrogression is perhaps most urgently in need of furtherexamination.

6. Conclusion

The central argument advanced in this article is that disagreements regardingthe nature and extent of the state’s welfare obligations should be played out pri-marily through the political process, subject to a structured form of supervi-sion on the part of the judiciary. In particular, it has been suggested that callsfor courts to give more detailed content to social rights are ill-conceived forboth democratic and institutional reasons. The article has therefore sought todevelop the reasonableness approach towards constitutional social rightswhile also maintaining a ‘restrained and focused’145 role for the courts.

This argument is unlikely to satisfy commentators who view constitutionalsocial rights as ideally mandating courts to institute far-reaching socialchange. However, that level of expectation was perhaps always unrealistic:courts are ill placed to deliver such change in the absence of some level ofpre-existing political momentum. As Aileen Kavanagh has remarked in con-text of national security, courts should be held to standards appropriate totheir institutional capacity.146 Given the contested nature of distributive just-ice, the article has argued that the role of the courts should be to deepen ac-countability on the part of the state while staging interventions in the type ofcircumstances where this is necessary and appropriate. That might seem amodest role but it is one that courts are well placed to perform and which iscapable of delivering benefits that should not be underestimatedçnot leastfor the individuals concerned.

145 Treatment Action Campaign, supra n 55 at para 38.146 ‘Judging the Judges under the Human Rights Act: Deference, Disillusionment and the ‘‘War on

Terror’’’ (2009) Public Law 287.




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WESSON constitucionalización social rights