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International Journal of Constitutional Law Advance Access originally published online on July 7, 2008
International Journal of Constitutional Law 2008 6(3-4):687-711; doi:10.1093/icon/mon014
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© The Author 2008. Oxford University Press and New York University School of Law. All rights reserved. For permissions, please e-mail: journals.permissions@oxfordjournals.org.

This article appears in the following International Journal of Constitutional Law issue: SYMPOSIUM: constitutionalism in an era of globalization and privatization [View the issue table of contents]

Socioeconomic rights: Do they deliver the goods?

Dennis M. Davis*

* Judge of the High Court of South Africa; honorary professor of law, University of Cape Town. Email: ddavis{at}justice.gov.za


  Abstract

The South African Constitution contains a series of social and economic rights that impose obligations upon the state to deliver basic goods and services to its citizens. The inclusion of these rights was the subject of intense debate during the negotiations leading to the introduction of the Constitution. The debate concerned the respective roles to be played by a democratically elected government and the judiciary. Analysis of key cases over the past fourteen years reveals that the judiciary has sought to strike a balance between holding the exercise of public power accountable to the Constitution and deferring to the policy choices of the government. This approach has resulted in very modest gains for the poor. Thus, socioeconomic rights may well promise more than they can deliver, but the modest consequence of compelling government to justify its policy choices when they affect the poorest of the poor should not be discounted.


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