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Unpublished Paper
Prepublication Version, Policentrism, Political Mobilization and the Promise of Socioeconomic Rights
ExpressO (2008)
  • Brian Ray
Abstract

Policentrism, Political Mobilization and the Promise of Socioeconomic Rights

Brian Ray

There is an active and heated debate over whether socioeconomic rights should be included in modern constitutions because of their supposed “positive” character and the difficult separation-of-powers and institutional-competence concerns such rights raise. The controversy over the nature of socioeconomic rights and whether constitutions should include them is connected to the issue of how to enforce these rights when they are included. The South African Constitutional Court is the leading example of a court dealing with these enforcement issues, and its early decisions have been hailed by many, including Mark Tushnet and Cass Sunstein, as developing a uniquely effective approach to enforcing socioceconomic rights. Tushnet suggests that the Court has adopted a “weak-form” approach to enforcement that gives the legislature a substantial role to play in interpreting these rights. Sunstein similarly argues that the court has adopted an administrative-law approach that limits the Courts’ role to assessing whether policies adopted by the other branches are reasonable. Many in South Africa, however, have been critical of the Court’s approach, arguing that it fails to give full effect to the promise of these rights by inappropriately limiting the Court’s role.

On February 19, 2008 the Constitutional Court handed down its most recent decision in the socioeconomic rights area, Occupiers of 51 Olivia Road v. City of Johannesburg. City of Johannesburg, and a landmark housing settlement that the Court approved in that decision, illuminate the Court’s approach to socioeconomic rights in important ways that call into question the accounts offered by both sides of this debate. This Article addresses the debate over the Constitutional Court’s enforcement of socioeconomic rights and draws on the City of Johannesburg litigation and other recent developments to offer a new framework for understanding the Court’s approach to socioeconomic rights.

Both sides of the debate have failed to adequately consider two key aspects of the Court’s early cases. First, the Court has consistently left open the possibility for evolution towards stronger forms of enforcement for these rights in subsequent cases. Second, in two of these cases, the Court has concretely demonstrated its willingness to take a direct role in enforcing socioeconomic rights. Focusing on these two aspects of the early cases, it is evident that the Court has described the possibility for a mixed form of review that is potentially more robust than both sides of the debate claim.

This mixed form of review is best described as a “policentric” form of review. The distinctive characteristic of policentric review is a sharing of interpretive authority with the legislative and executive branches of government and a consequent willingness by courts to respect constitutional interpretations by those branches that differ from their own. The policentric approach has several key advantages over a traditional juricentric approach that are particularly important in the socioeconomic rights area. Policentric review enhances the informational basis for implementing these rights by giving the courts the benefit of the other branches’ better-informed perspectives on the complex policy choices involved in enforcing these rights. At the same time, extending interpretive authority to the other branches also establishes a democratic basis for making those policy tradeoffs.

Perhaps most importantly, policentric review improves the prospects for meaningful implementation of these rights in the long-term. It creates incentives for the legislature and executive branches to take seriously their roles in enforcing these rights by giving them the authority to develop independent interpretations of what these rights require. And, by placing the interpretive function expressly into the political sphere, policentric review encourages the development of political mobilization to seek responsive policy changes by the government. Finally, the judicial role is highly flexible under policentric review. This means courts can operate along a continuum of relatively weaker or stronger interventions in each case. At the weaker end of this continuum, courts can defer completely to the judgment of the government that a particular policy is the most effective mechanism for enforcing a particular right. Conversely, at the stronger end, courts remain free to order specific changes to a program and even to issue structural injunctions to ensure compliance with their orders.

Recognizing that the Constitutional Court has begun to develop a policentric approach answers the critics’ principal objection that the Court’s deferential approach to enforcement in its early cases has diminished the force of the socioeconomic rights. At the same time, the flexibility that the Court has retained to take a more direct role in enforcing socioeconomic rights requires revision of the relatively restrained approach described by those that have commented favorably on the Court’s current approach.

Parts II and III of this Article outline the Court’s early cases and the debate that has developed around them. Part IV critiques both sides of this debate and develops a new account of the Constitutional Court’s approach to socioeconomic rights. Part V analyzes recent developments in the socioeconomic rights area, including the City of Johannesburg litigation as well as recent lower-court cases, to assess the effectiveness of the Court’s policentric approach.

Keywords
  • socioeconomic rights,
  • social welfare rights,
  • socio-economic rights,
  • judicial review,
  • constitutional courts
Disciplines
Publication Date
2008
Citation Information
Brian Ray. "Prepublication Version, Policentrism, Political Mobilization and the Promise of Socioeconomic Rights" ExpressO (2008)
Available at: http://works.bepress.com/brian_ray/1/