Poverty and Fundamental Rights: The Justification and Enforcement of Socio-economic Rights

by David Bilchitz

Overview

This book addresses the pressing issue of severe poverty and inequality, and questions why violations of socio-economic rights are treated with less urgency than violations of civil and political rights, such as the right to freedom of speech or to vote? Socio-economic rights have been widely regarded as aspirational goals, rhetorically useful, but having few practical implications for government policy and the distribution of resources within a polity. It is not therefore surprising that socio-economic rights have been systematically neglected in the world today, with millions still lacking access to even basic shelter, food or health care. This book seeks to provide a sustained argument for placing renewed emphasis upon socio-economic rights in the fight against desperate poverty. It utilizes a combination of political philosophy, constitutional law, and public policy in its focus on the right to food, to housing, and to health care. Part I involves the development of a philosophical theory of rights that provides a common normative foundation for both civil and political rights and socio-economic rights. This theory involves developing an understanding of value that recognizes individuals have fundamental interests of differing levels of urgency. It also involves drawing an important distinction between conditional rights that flow purely from a normative focus on the equal importance of individuals and unconditional rights that involve competing normative and pragmatic considerations. A general theory of judicial review is also put forward that provides a justification for judicial involvement in the enforcement of socio-economic rights. Part II then considers the implications of this general philosophical theory for the interpretation and enforcement of socio-economic rights in law. The focus of this more applied discussion is upon South Africa, where entrenched, directly justiciable socio-economic rights are expressly protected in the constitution. The current approach of the South African Constitutional Court to their interpretation and enforcement is considered and criticized primarily for failing to provide sufficient content to such rights. A modified version of the minimum core approach to socio-economic rights is proposed as an alternative way which is supported by the philosophical theory developed in the first part of the book. This approach requires priority to be given to the worst off in society through placing a heavy burden of justification on any society that fails to meet the minimal interests of individuals. It also requires concrete steps to be taken towards realising a higher level of provision that guarantees individuals the necessary conditions for realising a wide range of purposes. This is also shown to have important policy implications both for developing and developed countries that can, it is hoped, assist in creating an urgency and commitment towards eradicating extreme poverty.

Product Details

ISBN-13:	9780191021695
Publisher:	OUP Oxford
Publication date:	02/22/2007
Sold by:	Barnes & Noble
Format:	eBook
File size:	815 KB

About the Author

David Bilchitz graduated cum laude from the University of the Witwatersrand, Johannesburg in 1997 with a BA (Hons) in Philosophy and in 1999 with a law degree (LLB). In 2000, he worked as law clerk to the current Chief Justice of South Africa, Pius Langa when the famous Grootboom case was decided. He graduated from St. John's College, University of Cambridge with an Mphil degree in Philosophy in 2001 and a PhD degree in 2004 with a thesis that combined political philosophy and constitutional law. He currently works for Ross Kriel Attorneys, a law firm that together with its sister organisation, Ashira Consulting, specialises in the law relating to the public sector. He is also a part-time lecturer in jurisprudence at the University of the Witwatersrand

Table of Contents

Table of Cases xvii Introduction 1 Chapter 1 Towards a Thin Theory of the Good
1 Introduction 6
2 Value and Point of View 7
3 Nussbaum and the Notion of a Human Life 10
4 Rawls and the Concept of the Person 17
5 Drawing Fact and Value Together: Experience and Purpose 23
6 In Defence of the Proposed Theory of Value 30
7 Judgements of Priority 38
8 Conclusion 46 Chapter 2 The Justification of Fundamental Rights
1 Introduction 47
2 The Presuppositions of Agency and Fundamental Rights 47
3 Nagel's Strategy: Impersonal and Personal Reasons 53
4 Equal Importance and the Justification of Fundamental Rights 57
5 Objections 65
6 Conclusion 74 Chapter 3 Determining Our Unconditional Obligations
1 Introduction 75
2 Unanswered Questions About the Content of Rights 75
3 Conditional and Unconditional Rights 78
4 Translating Conditional Rights into Unconditional Rights 83
5 The Assignment of Duties 91
6 The Overall Decision Framework 98
7 Conclusion 100 Chapter 4 Justifying the Judicial Review of Fundamental Rights
1 Introduction 102
2 Theories of Judicial Review 103
3 Disagreement, Rights, and Judicial Review 108
4 A Thin Rights-based Theory of Judicial Review 115
5 Reaching Optimal Decisions Concerning Fundamental Rights: The Judiciary or the Legislature? 119
6 Socio-Economic Rights and Judicial Review 128
7 Conclusion 132 Chapter 5 Judicial Review in Practice: The Reasonableness Approach and its Shortcomings
1 Introduction 135
2 Constitutional Interpretation in South Africa 136
3 Grootboom: Reasonableness and the Minimum Core 139
4 Treatment Action Campaign: Reducing Rights toReasonableness 152
5 An Alternative Reading of the Jurisprudence? 166
6 Khosa: Reasonableness and the Confusion of Scope and Content 170
7 Conclusion 176 Chapter 6 Political Philosophy in Action: Developing the Minimum Core Approach to Socio-Economic Rights
1 Introduction 178
2 Linking Political Philosophy and Legal Doctrine 179
3 The Case for a Minimum Core Approach 183
4 Objections to the Minimum Core Approach 197
5 The Notion of Priority and the Minimum Core 208
6 Resources, Impossibility, and Rights 215
7 The Availability of Resources 225
8 Conclusion 234 Chapter 7 Conclusion: Implications for Policy in South Africa and Beyond
1 The Right to Food in the United States, India, and South Africa 238
2 The Right to Adequate Housing in the United Kingdom, India, and South Africa 248
3 Conclusion 260 Bibliography 262 Index 273