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

by Bilchitz, David

• ISBN13: 9780199204915
• ISBN10: 0199204918
• Format: Hardcover
• Copyright: 2007-04-09
• Publisher: Oxford University Press

Summary

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 inthe 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 ofdiffering 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 ofjudicial 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 justifiable socio-economic rights are expressly protectedin 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 isproposed as an alterative way which is supported by the philosophical theory developed in the first part of the book. This approach requires priority to be given to worst off in society through placing a heavy burden of justification on any society that fails to meet the minimal interests ofindividuals. 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 countriesthat can, it is hoped, assist in creating an urgency and commitment towards eradicating extreme poverty.

Author Biography

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