Faculty of Law, University of Toronto
Constitutional Roundtable
presents
Dr. David Bilchitz
South African Institute for Advanced Constitutional, Public,
Human Rights and International Law (SAIFAC)
Towards a Theory of Content for Socio-Economic Rights
12:30 – 2:00
Wednesday, May 28, 2008
Classroom B (FLB) – Flavelle House
Faculty of Law, University of Toronto – 78 Queen’s Park
In order to enforce socio-economic rights, it is necessary to have a theory of what they guarantee and protect. The generally weak enforcement of socio-economic rights can partially be explained by the failure adequately to understand what they entail. In this paper, I shall consider three approaches to determining the content of socio-economic rights. The ‘reasonableness’ approach, adopted by the South African Constitutional Court, sees the point of socio-economic rights as merely requiring the government to justify its policies and programmes. The problem is that it is not clear against which standards the justification of the government must be evaluated. This approach is consequently empty without further elaboration. The ‘equality approach’ sees the essence of socio-economic rights as involving guarantees that government programmes do not unreasonably exclude significant sectors of the population from their ambit. The approach, however, fails to explain what the benefits are that socio-economic rights guarantee: it is essentially a comparative approach that provides no guidance where there are no existing entitlements. The modified ‘minimum core approach’ understands the content of socio-economic rights as involving the protection of the interests of individuals according to their relative urgency. The approach mandates that priority be given to those whose very survival is at stake whilst seeking to ensure that everyone is entitled to a higher threshold of provision that guarantees each individual the necessary prerequisites for living lives of value to them. The approach defended here involves requiring government action to be justified in relation to the manner in which it prioritizes the interests of the worst-off.
The minimum core approach faces particular difficulties in relation to the right to health-care in that the principled definition of the minimum core would not only involve basic services but extremely expensive health-care as well. In light of this problem, I argue for the distinction between a ‘principled minimum core’ and a ‘pragmatic minimum threshold’ and attempt to show the importance of both to defining the content of the right to health-care. With these refinements, I shall argue that the minimum core approach is able to provide meaningful content to socio-economic rights and the paper concludes with an illustration of how this has occurred in an important case in India.
Dr. David Bilchitz has a BA (Hons) LLB cum laude from Wits University. He graduated with an MPhil in Philosophy from St John's College, University of Cambridge in 2001 and with a PHD in political philosophy and law from the same university in 2004. His book on ‘Poverty and Fundamental Rights: the Justification and Enforcement of Socio-Economic Rights’ was published by Oxford University Press at the end of February 2007. He has several other publications on the Law of Evidence, Socio-Economic Rights and Family law. David worked as law clerk to Chief Justice Langa of the Constitutional Court in 2000 (who was then Deputy Judge-President). From August 2004 until 2006, he worked at Ross Kriel Attorneys, a law firm dealing with public sector law and he is an admitted attorney. He is a Visiting Senior Research Fellow at the University of the Witwatersrand Law School and a sessional lecturer in Jurisprudence at the same university. He is currently employed full-time as senior researcher at the South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC).
A light lunch will be provided.
For more information about this workshop, please contact Lorraine Weinrib at l.weinrib@utoronto.ca or Nadia Gulezko at n.gulezko@utoronto.ca
