In recent years there have been significant attempts in several countries to use positive legal obligations to remedy aspects of social disadvantage. These range through directive constitutional principles of social policy, as in India, the use of the “social state” principle as an interpretative guideline for the judiciary in Germany, and the application of equality rights and administrative justice in Canada and the United Kingdom to protect socio-economic interests. South Africa is one of the few countries whose constitution expressly provides for the direct judicial enforcement of a number of socio-economic rights. These include the rights of access to adequate housing, health care services and sufficient food and water, as well as rights to basic and further education, fair labour practices and a healthy environment. Although the judiciary in some post-communist European states and in South American jurisdictions are willing to enforce socio-economic rights, the South African experience with judicial enforcement is particularly interesting to students of law because of the extensive reasoned judgments. The judgments of the South African Constitutional Court, including dissenting judgments, can read like academic treatises replete with philosophical, sociological, legal and practical arguments. This makes the contribution of academic writers extremely important, given the receptiveness of judges trained in the Roman-Dutch tradition to the opinion of jurists.
The author of this comprehensive and detailed analysis of the South African constitutional jurisprudence, Sandra Liebenberg, stands in the forefront both in South Africa and internationally of scholars in the field of socio-economic rights. She served as a member of the Technical Committee to the Constitutional Assembly's “Theme Committee” on Fundamental Rights in the early 1990s, and founded the Socio-Economic Rights Project at the University of the Western Cape. She is currently H.F. Oppenheimer Professor of Human Rights Law in the University of Stellenbosch, and she has been involved in preparing heads of argument and amicus curiae briefs in several leading socio-economic rights cases. As one would expect, this book goes well beyond a description of the case law for practitioners. It stands alongside Sandra Fredman's Human Rights Transformed: Positive Rights and Positive Duties (Oxford, 2008) as one of the most important works to date on transformative human rights.
The first four chapters develop the theoretical and contextual framework, and the remainder of the book analyses and evaluates the South African jurisprudence in areas such as children's rights, education, deprivation of liberty, housing evictions, and in private law, and the development of responsive remedies. Liebenberg points out that it was unthinkable, in view of the history of apartheid and the persistence of gross socio-economic inequality, that the democratic constitution could ignore socio-economic rights. But there was much controversy as to whether these should be confined to negative obligations. There were both liberal and left-wing objections to justiciable positive obligations. Liberals argued that socio-economic rights were not “universally accepted fundamental rights” (and so fell outside the remit of those drafting the Bill of Rights in the final constitution) and that these rights were not justiciable. Left critics argued that there was no guarantee that the judiciary would interpret these indeterminate rights in ways which promoted the kind of social democracy which the African National Congress and its allies had advocated since the adoption of the Freedom Charter in 1955. For example, Professor (now Mr Justice) Dennis Davis argued that justiciable socio-economic rights “elevates judges to the role of social engineering, concentrates power at the centre of the state and consequently erodes the influence of civil society” (D.Davis, “The case against the inclusion of socio-economic demands in a Bill of Rights except as directive principles” (1992) 8 SAJHR 475–90 at 486). The central objection of both liberals and left was based on the principle of separation of powers: socio-economic rights would compel the judiciary to encroach on the proper terrain of the legislature and executive by dictating the allocation of resources to the government. These objections were raised during the process of certification of the final constitution as complying with the constitutional principles that had been prescribed, but were all rejected by the Constitutional Court.
Like the American critical legal scholar, Karl Klare, Liebenberg grounds her analysis and critique of the case law in a theory of transformative constitutionalism. She adopts Klare's understanding of the South African constitution as a long-term project to transform “the country's political and social institutions and power relationships in a democratic, participatory and egalitarian direction” (K.Klare, “Legal culture and transformative constitutionalism” (1998) 14 SAJHR 146–88 at 150). Her touchstone is that democratic deliberation is central to the process of transformation. She recognises that “there is clearly a tension between adjudication as a forum for authoritative decision-making according to binding legal norms, and its potential to serve as a forum for deliberation over the meaning and implications of the normative commitments in a constitution” (pp. 33–4).
Liebenberg also recognises that despite its potential, adjudication of socio-economic rights has disadvantages that may undermine the participatory deliberative model she espouses. Among these are the possibility of narrow interpretations of rights which harm their flexible development, a growing dichotomy between public actors, on whom strong obligations are placed, and private ones who have weak or non-existent obligations, the insulation of these rights from wider political discourse and action, and the reinforcement of stereotypes of disadvantaged communities as passive beneficiaries of goods provided by a benevolent state. However, she argues that such disadvantages of adjudication are outweighed by its potential to create a form of dialogic politics in which the state and private actors are compelled to justify their policies and actions in a public forum. The courts can also encourage “meaningful engagement” in the remedial process by requiring transparency and the participation of affected groups in the implementation of social policies. She illustrates this with reference to a number of important cases mainly relating to housing evictions.
One of the most valuable aspects of the book, is the carefully nuanced argument that Liebenberg makes against the essentially managerial and process-oriented role that the judiciary has adopted. The Constitutional Court has refused to determine “minimum core obligations” in assessing compliance, holding that it for the government to set the core. The Court has limited itself to requiring the state to perform its obligations in a manner which is “reasonable”. Liebenberg puts the case for reconceiving reasonableness review in the context of the rights to health care, sufficient food and water, and social security (s. 26) and to education (s. 27). She argues that a critical feature of transformative constitutionalism is a substantive, rather than purely procedural approach to the interpretation of the Bill of Rights, and that these norms should be grounded in section 39(1) of the Constitution which requires the courts, when interpreting the Bill of Rights to promote the values of human dignity, equality and freedom. Although the Court has set out a number of criteria for “reasonableness”, this approach, despite the intensive rhetoric of human rights, has so far led to fairly conservative results leaving the state with a substantial margin of discretion. Also court-directed “meaningful engagement” is generally limited to the remedial stage in housing eviction cases, and the judiciary has been reluctant to correct the imbalance of power between the state and local communities by setting substantive norms within which engagement should occur. Liebenberg's solution would be to require a much higher standard of justification in respect of both negative and positive obligations and a more active role for the judiciary in setting substantive norms.
Despite Liebenberg's cogent arguments I remain sceptical as to whether the judiciary, particularly a Constitutional Court which no longer has among its members those who were involved in drafting the Bill of Rights, will be willing to take on this enhanced role or to place greater burdens on the state. Judicial deference to the legislature and the separation of law and politics are deeply embedded in South Africa. There are also reasons that lie at the heart of using law as an instrument for social change. These have to do both with the complexity and multidimensional nature of social disadvantage, and with the inability of law as one social system to penetrate other self-regulating systems. A system of “responsive” or “reflexive” enforced self-regulation, backed by the ultimate sanction of judicial enforcement, may in the long run be more effective than direct judicial enforcement.
Anyone interested in the fascinating use of the law to challenge the problems of poverty, disadvantage and inequality, will have to return again and again to this fine book both for inspiration and reasoned argument.
