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4 Const. Ct. Rev. 1 (2011)

handle is hein.journals/conrev4 and id is 1 raw text is: 


                             AND   SOCIO-ECONOMIC RIGHTS
                                        AS  'INSURANCE SWAPS'

                            Rosalnd Dixon* & Tom         Ginrg*

1      Introduction

Socio-economic   rights  are a  central  terrain of  struggle  in new
democracies.'   Often  deemed   essential  for the  legitimacy of  the
constitution at the time of adoption, they are subject to downstream
pressures  at the  implementation stage as governments confront
limited  budgets  and the  need  for macroeconomic credibility.   The
result is a gap between  promise and  reality. It is not surprising that,
in an  age of judicialisation, socio-economic  rights have  become   a
central topic of constitutional adjudication in many new democracies,
as  courts   struggle  to  balance   normative    commitments with
democratic  prerogatives.2

    The  South African Constitutional Court, in the 2010 Term,  heard
a  number   of important  cases  involving the  socio-economic  rights
provisions  in sections 26-29  of the  Constitution.  In Nokotyana   v
Ekurhuleni  Metropolitan  Municipality,3 the Court considered  a claim
by the applicants to have  access to upgraded  toilets and lighting, as

*   Assistant Professor, University of Chicago Law School, Professor, UNSW Faculty of
    Leo Spitz Professor of International Law and Professor of Political Science,
    University of Chicago Law School, Research Professor, American Bar Foundation.
    Our thanks to Sujit Choudry, Beth Goldblatt, Eric Posner and Theunis Roux for
    extremely helpful comments on prior versions of the paper, and to Alex Bergersen
    and Kristen McKeon for excellent research assistance.
    The division between socio-economic and other rights is, of course, an artificial
    one: see eg T Daintith 'The constitutional protection of economic rights' (2004) 2
    International Journal of Constitutional Law 56 - 90. We use the LabeLs, however,
    simply as a short-hand for denoting a distinct set of rights.
2   RU Yepes 'The enforcement of social rights by the Colombian Constitutional
    Court' in R Gargarella, P Domingo Et T Roux  (eds) Courts and social
    transformation in new democracies (2006) 127; C Rodriguez-Garavito 'Colombia:
    The new left: Origins, trajectory and prospects' in P Barret et at (eds) The new
    Latin American left: Utopia reborn (2008) 129 - 157.
    Nokotyana v Ekurhuleni Metropolitan Municipality 2010 4 BCLR 312 (CC).



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