Lessons Learned from the South African Constitutional Court: Toward a Third Way of Judicial Enforcement of Socio-Economic Rights
![handle is hein.journals/mistjintl12 and id is 97 raw text is: LESSONS LEARNED FROM THE SOUTH AFRICAN
CONSTITUTIONAL COURT: TOWARD A THIRD
WAY OF JUDICIAL ENFORCEMENT OF
SOCIO-ECONOMIC RIGHTS
Paul Nolette*
INTRODUCTION
The question of whether constitutionally recognized socio-economic
rights' are judicially enforceable remains a hotly debated issue through-
out the world as the number of socio-economic guarantees appearing in
national constitutions continues to grow. Much of this debate, however,
is conducted on a purely theoretical level since judicial precedent
speaking to the issue is remarkably thin. This lack of judicial precedent
has made it difficult to predict how judicial enforcement might actually
work in practice.
Recently, however, South Africa's Constitutional Court has decided
a number of significant cases that provide important insight into the
judicial enforceability of socio-economic rights. The South African
constitutional system, as an administrative law model of socio-econo-
mic rights,2 presents a novel and highly promising approach to judicial
protection of socio-economic rights.3 This is because the approach
answers a number of questions about the proper relationship among
socio-economic rights, constitutional law, and democratic delibera-
tion.4 In particular, the Court's approach promote[s] a certain kind of
deliberation, not [] preempting it, as a result of directing political atten-
tion to interests that would otherwise be disregarded in ordinary political
* B.A. 2001, Saint Anselm College. The author is a third-year law student at
Georgetown University Law Center. After graduation, he will join the law firm of Nelson,
Kinder, Mosseau & Saturley in Manchester, New Hampshire. I would like to especially thank
Professor Mark Tushnet for his invaluable help in developing and improving this manuscript.
Additionally, I would like to thank Cindy Marcotte, John Paul Verderese, Jonathan Isaacs, and
my parents for all of their helpful comments on earlier drafts.
1. Socio-economic rights are those rights concerned with protecting the basic
necessities of life, such as health care and housing.
2. CASS R. SUNSTEIN, DESIGNINGDEMOCRACY: WHATCONSTTUTIONSDO 234(2001).
3. Id. at 236.
4. Id. at 233.](ViewImageLocal?handle=hein.journals/mistjintl12&div=8&collection=&method=preview&ext=.png&size=3)
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