The wave of constitutional democracy, which was generated during the latter part of the previous century, has ensured that the enforcement of socio-economic rights have become central to contemporary constitutional debates. At the most obvious level of justification for the inclusion of these rights within a constitution lies the argument that they enhance democracy by way of the guarantee that every member of a political community must enjoy a minimum standard of welfare in order to participate in the social and political life of the society of which he or she is a member.
By contrast, the traditional argument, not only articulated by those who view a constitution as primarily a preservative instrument but also by more progressive legal voices, contends that the involvement of courts in the allocation of public resources can either, at worst, impede economic growth, or, at best, may serve to disrupt social welfare provisioning.
The record of courts in Columbia, South Africa and India are employed to counter this criticism. Advocates on behalf of these courts have done an excellent ‘sales job’ in promoting the progressive credentials of these institutions. However, can it be said with any confidence that socio-economic litigation promotes the interests of the poorest of the poor as opposed to those better resourced and who are more often than not the litigants in these cases? To what extent do judgments in these cases materially affect the overall position of inequality, as is claimed?
This question often leads to the observation that a concession about the limitations of litigation does not mean that socio-economic rights should be viewed in a binary fashion that is: either litigation or politics. However, the greatest potential for the development and enforcement for socio-economic rights should lie in properly structured political engagement. This becomes even more imperative in the second decade of the twenty-first century, within a context of fiscal austerity or, to express it differently, when neo-liberal economics shows a surprising but continued hegemony, even though its core is at war with the ambitions of social and economic rights contained in modern constitutions. The absence of sustained political engagement leads to present day Hungary or the current threats to the South African Constitution.
Dennis Davis is a Judge of the South African High Court, the President of the Competition Appeal Court, Professor of Law at the University of Cape Town, the host of popular current affairs television programmes, and a former technical advisor to the Constitutional Assembly.