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American School Finance Litigation and the Right to Education in South Africa
Southern African Public Law
  • Scott R. Bauries, University of Kentucky College of Law
Abstract

This paper addresses the South African Constitution's invitation to the Constitutional Court to 'consider foreign law' when interpreting its provisions. Focusing on the education provisions found in section 29 of the Constitution, I make two claims. Firstly, contrary to the developing consensus, American state supreme court jurisprudence in school funding cases makes a poor resource to aid the interpretation of the basic South African right to education, regardless of the quantum of education that the Constitutional Court decides is encompassed by the word 'basic'. Secondly, however, certain aspects of these same American decisions, particularly the space they provide for a fiduciary theory of socioeconomic duties, could provide the Constitutional Court with a principled theory to undergird its ongoing rights-protective project that seeks to operationalise socioeconomic rights while also respecting institutional boundaries.

Document Type
Article
Publication Date
1-1-2012
Notes/Citation Information

Southern African Public Law, Vol. 27, No. 2 (2012), pp. 408-432

Citation Information
Scott R. Bauries, American School Finance Litigation and the Right to Education in South Africa, 27 S. African P.L. 409 (2012).