Socio-Economic Rights: Adjudication Under a Transformative Constitution (review)

I. Introduction

The South African Constitution is heralded for the broad protections it affords social and economic rights. In Socio-Economic Rights: Adjudication under a Transformative Constitution, Professor Sandra Liebenberg offers a thoughtful examination of the socioeconomic rights jurisprudence developed by South African courts since the adoption of the country's current constitution fifteen years ago. In meticulous detail, she describes how the jurisprudence of the Constitutional Court and other South African courts has evolved in the area of socioeconomic rights. At the same time, she offers an incisive critique of this jurisprudence, identifying how it has too often been shaped by a narrow and formalistic conception of rights that overlooks their social justice purposes and reinforces deeply unequal social and economic relationships. Finally, Liebenberg offers suggestions for the future development of this jurisprudence in ways that would be more consonant with the transformative purposes of the South African Constitution.¹

This nuanced and engaging account stands as a masterful reference work for scholars and legal practitioners interested in the development of South Africa's socioeconomic rights jurisprudence. At the same time, the very detail and comprehensiveness of the book's discussion of this jurisprudence tends, in some places, to overshadow Liebenberg's normative analysis. Additionally, it is not always readily apparent, particularly to readers who are not well-versed in South African case law, where the book's descriptive passages end and Liebenberg's prescriptions begin.

However, the normative proposals that Liebenberg offers are both principled and practical, and they make an important contribution to global debates about how courts can and should give effect to social and economic rights.

Among other things, Liebenberg points out the challenges that South African courts have encountered in deciding cases involving socioeconomic rights. South Africa's constitution is unique in its robust protection of a wide array of socioeconomic rights,² express commitment to substantive equality and social justice,³ embrace of international and foreign law,⁴ and horizontal application of rights to disputes between private parties.⁵ Nonetheless, courts around the world confront many of the same challenges South African courts have dealt with when they seek to enforce socioeconomic rights.

We focus on three of the most salient problems and demonstrate how a court in another country (the New York Court of Appeals) has wrestled with and addressed these challenges. We also discuss Liebenberg's prescriptions for how courts should engage with these issues. First, courts have struggled with creating an appropriate framework to evaluate government policies (or lack of policies) with regard to socioeconomic rights. In adjudicating socioeconomic rights cases, courts must develop a vision of the appropriate approach the government should take. Courts are reluctant to do this for a host of reasons, including a belief that such work is inconsistent with the role of the judiciary. Second, if a court does determine that a government action or inaction violates the constitution, then it encounters difficulty in crafting appropriate remedies, in part because the appropriate remedies in these cases often impact many individuals and require potentially sweeping policy changes. Linked to both of these points is a set of challenges relating to the doctrine of separation of powers. When courts adjudicate cases that affect budgets or have wide-scale impact, they confront internal and external concerns about the decision's potential to impinge upon the authority of the legislative or executive branch of government.

Courts in the United States, not generally known for their receptivity to socioeconomic rights, have addressed these challenges in the context of the right to education. Because the US national constitution does not guarantee socioeconomic rights, international scholars and practitioners rarely look to American jurisprudence when comparing approaches to socioeconomic rights adjudication. However, the constitutions of all US states but one include right-to-education provisions.⁶

This essay focuses on...