Thickening the rule of law in transition: the constitutional entrenchment of economic and social rights in South Africa

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State: Public
Version: Author's accepted manuscript
Serval ID
serval:BIB_777E8B5E398B
Type
A part of a book
Collection
Publications
Title
Thickening the rule of law in transition: the constitutional entrenchment of economic and social rights in South Africa
Title of the book
International law in domestic courts: rule of law reform in post-conflict states
Author(s)
Schmid E.
Publisher
Intersentia
Address of publication
Cambridge
ISBN
978-1-78068-041-5
Publication state
Published
Issued date
2012
Editor
Kristjansdottir E., Nollkaemper A., Ryngaert C.
Volume
9
Series
Series on transitional justice
Pages
59-81
Language
english
Abstract
This chapter examines the ability of the South African Constitutional Court to apply economic and social rights (ESR) and whether the constitutionalization of ESR represents a mechanism capable of entrenching a substantive or 'thick' conception of the rule of law. The chapter considers 'transformative constitutionalism' and its ability to fulfil the ambitions of setting out to establish a society based on social justice and fundamental human rights. The South African jurisprudence after the constitutionalization of human rights, in particular ESR, has been praised by the international community. Nevertheless, the central tenets of the chapter are two cautionary findings. First, the analysis cautions against using constitutional change alone to enhance the rule of law after conflict or oppressive rule. Although constitutional adjudication in South Africa has had positive outcomes, modifying the place accorded to international law in the domestic legal system is largely insufficient for the realization of ESR and the 'thick' conception of the rule of law envisioned by the drafters of the 1996 Constitution. Second, the chapter finds that a domestic belief in the relevance of international and national legal norms was decisive in the South African experience. The constitutional empowerment of domestic courts to apply international legal principles would not, by itself, explain the practice of national courts insisting on the implementation of rights recognized in international law. Moreover, a number of unique factors related to the actors and process leading to the constitutional transformation in South Africa contribute to explain the remarkable transition towards an international law-friendly constitution. While the empowerment of domestic courts in South Africa provides lessons for other states, those lessons are primarily ones regarding limitations, complexities, and context-specific issues that arise in the empowerment of domestic courts to apply international legal principles in situations of transition.
Keywords
South Africa, transition, constitutional law, social, economic rights, transformation, rule of law
Create date
14/08/2017 9:08
Last modification date
20/08/2019 14:34
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