Human Rights Law Review12:2 The Author [2012]. Published by Oxford University Press.

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doi:10.1093/hrlr/ngs010 Advance Access publication 24 May 2012
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Disagreement and the
Constitutionalisation of
Social Rights
Murray Wesson*
Abstract
A key reason for resistance to constitutional social rights is that in
many democracies there is reasonable disagreement about the nature
and extent of the states welfare obligations. Social rights are likely
to be regarded by many not as principles capable of constituting the
political space but rather as essentially political claims. The article
argues that it is nevertheless possible to envisage a democratically ap-
pealing role for the judiciary in enforcing social rights provided that
courts are understood as forums of accountability. Against this back-
ground, the interest generated by the South African Constitutional
Courts social rights jurisprudence is unsurprising given that the
reasonableness standard does not place the Court in the position of
primary decision-maker. However, the Courts jurisprudence has been
subjected to criticism. The question is how to develop the Courts ap-
proach without compromising its democratic appeal. The article rejects
the proposal that the Court should accord detailed content to social
rights, an approach that has been taken by courts in jurisdictions such
as India, Colombia and Brazil. The article instead suggests that the
reasonableness standard should be structured by principles that are
indicative of the types of circumstances where judicial intervention is
necessary and appropriate. Disagreements regarding distributive justice
should be played out primarily through the political process subject to
a structured form of judicial supervision.
* Lecturer, School of Law, University of Leeds (m.r.wesson@leeds.ac.uk). I would like to thank par-
ticipants at the workshop Advancing Economic and Social Rights, Current Issues in
Research held at the University of Durham on 18 March 2011 and participants at the WG
Hart Workshop, Comparative Aspects on Constitutions: Theory and Practice held at the
Institute of Advanced Legal Studies, University of London, from 29 June to 1 July 2010, for
very helpful feedback on earlier versions of this article.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Human Rights Law Review12:2(2012), 221^253

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Keywords: constitutional law ^ social rights ^ reasonableness
standard ^ democracy ^ distributive justice ^ role of courts ^ South
African Constitutional Court
1. Introduction
To what extent should constitutionsused loosely to include constitutional
statutes such as the Human Rights Act 1998 (HRA) as well as rigid Bills of
Rightsreflect the values and institutions of the welfare state in the form of
justiciable social rights? Put differently, to what extent should statutory entitle-
ments to welfare that already exist in many democracies be translated into
constitutional entitlements? What form should these provisions take and
what should the role of the courts be in giving effect to these rights? These
are difficult questions that have gained particular prominence in recent
years. There is no shortage of social rights advocates in the ranks of academia.
Yet in many democracies considerable uncertainty remains in the political
sphere. In the UK, for instance, the previous Labour government was only will-
ing to consider whether there might be a role for non-justiciable principles re-
flecting existing welfare provisions in a future British Bill of Rights.
1
The Joint
Committee on Human Rights (JCHR) went further and advocated the inclusion
of justiciable social rights in a Bill of Rights.
2
Yet these were made subject
to caveats, which meant that they reflected an attenuated version of social
rights.
3
The current Conservative/Liberal Democrat coalition government has
established a commission to investigate the case for a Bill of Rights.
4
But
given the inclusion of several members sceptical of the existing HRA,
5
it
seems unlikely that the Commission will recommend the creation of constitu-
tional social rights.
There are many factors that might explain the hesitation that so easily sur-
rounds constitutional social rights at a political level. However, this article
focuses on two issues. The first is the observation that in many democracies
there is likely to be persistent, deep-seated and reasonable disagreement about
1 UK Ministry of Justice, Rights and Responsibilities: Developing our Constitutional
Framework, CM7577 (2009) at para 1.11, available at: http://www.official-documents.gov
.uk/document/cm75/7577/7577.pdf [last accessed 28 March 2012].
2 Joint Committee on Human Rights (JCHR), A Bill of Rights for the UK? Twenty-Ninth Report
2007/08, 10 August 2008, available at: http://www.publications.parliament.uk/pa/jt200708/
jtselect/jtrights/165/16502.htm [last accessed 28 March 2012].
3 For discussion, see Fredman,New Horizons: Incorporating Socio-Economic Rights in a British
Bill of Rights (2010) Public Law 297 at 316; and Gearty, Against Judicial Enforcement, in
Gearty and Mantouvalou (eds), Debating Social Rights (Oxford/Portland: Hart, 2011) at 66.
4 Commission on a UK Bill of Rights launched, available at: http://www.justice.gov.uk/news/
newsrelease180311a.htm [last accessed 28 March 2012].
5 Travis and Wintour, Deadlock likely on commission pondering a British Bill of Rights,
The Guardian, 18 March 2011, available at: http://www.guardian.co.uk/law/2011/mar/18/
deadlock-bill-of-rights-commission [last accessed 28 March 2012].
222 HRLR 12 (2012), 221^253

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the nature and extent of the states welfare obligations. Of course, all rights are
subject to disagreement.
6
But social rights touch on what is in many democra-
cies a key political fault line, namely, the divide between political groupings
that favour an expansive role for the state in the provision of welfare and
those that understand the states welfare obligations in more restrained terms.
In these circumstances, constitutional social rights are likely to be regarded
by many not as principles capable of underpinning and framing the political
process but rather as essentially political claims. The JCHR makes this point
as follows:
In any country debating whether or not to adopt a national Bill of Rights,
one of the most controversial issues is whether the Bill of Rights should
include economic and social rights. This is hardly surprising: the debate
is an outcrop of often deeply submerged but sincerely held differences
between reasonable people about the most fundamental questions of pol-
itical philosophy, including the nature of liberty and the appropriate role
of the State in preventing inequality. We therefore approach the issue
under no illusions about the fact that opinion on including economic
and social rights is currently polarised, and that the division of opinion
often follows party political lines.
7
The second issue is that notwithstanding the unprecedented judicial and
academic attention that social rights have received in recent years, the nature
of the obligations imposed by these rights remains unclear.
8
These issues
are related because in the absence of a reasonably clear account of what
social rights entail it is difficult to sensibly address concerns regarding their
constitutionalisation.
This article argues that it is nevertheless possible to construct a democratic-
ally appealing role for the judiciary in enforcing social rights in jurisdictions
such as the UK, where some level of judicial enforcement of civil and political
rights is now generally accepted but social rights are likely to be regarded by
many as democratically problematic. To this end, the first part of the article
argues that the role of the courts in determining the states welfare obligations
should generally be clearly secondary and rooted in the value of accountability,
thereby allowing disagreements about social rights to be played out primarily
through the democratic process. However, in this section the idea is also intro-
duced that there may be circumstances that should be of particular concern
6 See generally Waldron, Law and Disagreement (Oxford: Oxford University Press, 1999).
7 See JCHR, supra n 2 at para 147.
8 It is true that the United Nations Committee on Economic, Social and Cultural Rights has pro-
duced a body of social rights jurisprudence in its general comments. However, given institu-
tional differences between the Committee and domestic courts it is doubtful that courts will
generally be willing to adopt these wholesale. This appears to be borne out by the South
African experience of constitutional social rights which is discussed in greater depth in the
body of the article.
Disagreement and the Constitutionalisation of Social Rights 223

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to courts, where the judiciary should involve itself more closely in the workings
of the welfare state. Against this background, the second part of the article
argues that the interest generated by the South African Constitutional Courts
now well-known social rights jurisprudence is unsurprising. This is because
the Constitutional Court employs a reasonableness standard that can be
understood as imposing a duty of accountability on the state, without placing
the courts in the position of primary decision-makers. In the UK, for instance,
the Constitutional Courts approach played a key role in the formulation of the
JCHRs proposals.
Nevertheless, as it stands, it is unclear that the Constitutional Courts rea-
sonableness standard provides a solution to the problem of how courts should
enforce social rights. Although the Courts decisions have attracted praise
they have also been subjected to criticism, much of which is not without
force. The article therefore considers whether it is possible to develop the
social rights jurisprudence of the Constitutional Court while maintaining its
democratic appeal. Many commentators critical of the reasonableness standard
have urged the Constitutional Court to give more detailed content to social
rights, an approach that has been taken by courts in jurisdictions such as
India, Colombia and Brazil. The article rejects this proposal on the ground
that it would be tantamount to the judiciary determining the extent of the
states welfare obligationsprecisely the issue that is subject to persistent dis-
agreement in the political sphere in jurisdictions such as the UK and which is
therefore more appropriately resolved through democratic politics. The article
instead argues that there should be greater predictability in the intensity with
which the reasonableness standard is applied. This should be achieved by
tying the reasonableness standard to principles that are indicative of the
types of circumstances that should be of particular concern to courts. In this
way, it should be possible to meet the multiple objectives of ensuring a level
of accountability on the part of the state regarding the measures that it has
implemented to realise social rights; allowing disagreements about welfare to
be played out primarily through the democratic process; while also ensuring
judicial involvement in the types of cases where it is necessary and appropriate.
2. The Democratic Objection to Constitutional
Social Rights
This article employs the term social rights as opposed to socio-economic
rights or economic, social and cultural rights. This is to indicate that the
focus is on rights such as education, health, housing, water and food as
opposed to labour rights or cultural rights. Given that the realisation of social
rights is an onerous obligation, typically the state need only proceed
224 HRLR 12 (2012), 221^253

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progressively and within its available resources. This is the case under the
International Covenant on Economic, Social and Cultural Rights (ICESCR)
9
and the South African Constitution.
10
Historically, there has been a tendency for discussions of social rights
to take as their starting-point the view that social rights and civil and polit-
ical rights are conceptually distinct. On this view, civil and political rights
are cost-free and impose negative obligations whereas social rights are
resource-intensive and impose positive obligations. Civil and political rights
impose clear duties and consequently lend themselves to judicial enforcement
whereas the duties imposed by social rights are vague and are therefore
non-justiciable.
However, it is now well-established that this dichotomy is overstated.
11
Positive duties are imposed not only by social rights but also by civil and
political rights such as the right to vote and the right to fair trial. Indeed, an
influential view is that all rights impose bundles of negative and positive obli-
gations. On this view, which stems from the work of Henry Shue,
12
rights
impose three levels of obligation: a duty to respect, a duty to protect and a
duty to promote and fulfil. The boundary between civil and political and
social rights is therefore blurred if not erased.
Nevertheless, this does not dissolve objections to constitutional social rights.
Even where it is accepted that the difference between civil and political rights
and social rights is one of degree rather than kind, social rights may still be re-
garded as raising more acute democratic concerns. This objection may take
three overlapping forms. Firstly, it may be that a key political grouping simply
rejects the obligations associated with social rights. This scenario tends to be
invoked by political constitutionalists such as Richard Bellamy who oppose
constitutional social rights on the basis that these ignore the reasonable dis-
agreement between social democrats, who regard social rights as promoting
autonomy, and conservative libertarians, who view the taxation required to
support social rights as on a par with forced labour.
13
However, it is possible
to overstate the extent to which we disagree about the states welfare obliga-
tions. Even in the United States, commonly regarded as being to the right of
most liberal democracies,
14
genuinely libertarian viewsof the kind alluded
9 993 UNTS 3 at Article 2(1).
10 Constitution of the Republic of South Africa No 108 of 1996 at sections 26, 27 and 29.
11 See, for example, Fredman, Human Rights Transformed: Positive Rights and Positive Duties
(Oxford: Oxford University Press, 2008) at 66.
12 Basic Rights (Princeton: Princeton University Press, 1980). Shues theory has been developed
by the United Nations Committee on Economic, Social and Cultural Rights: see, for example,
General Comment No 12: The right to food (art. 11), 12 May 1999, E/C.12/1999/5; 6 IHRR 902
(1999) at para 15.
13 Political Constitutionalism (Cambridge: Cambridge University Press, 2007) at 25 quoting
Nozick, Anarchy, State and Utopia (Oxford: Blackwell, 1974) at 169.
14 See, for example, Micklethwait and Wooldridge, The Right Nation: Why America is Different
(London: Allen Lane, 2004).
Disagreement and the Constitutionalisation of Social Rights 225

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to by Bellamyare apparently not widespread.
15
Nevertheless, it could be that
a prominent political grouping rejects the states responsibility to deliver a key
social right, such as healthcare. It may also be that the states obligation to pro-
vide some level of welfare is accepted, but this is understood in such limited
terms that the notion of social rights is effectively rejected.
In political contexts such as these, social rights are unlikely to find their
way into constitutions or survive in constitutional form. This does not mean
that ordinary legislation may not from time to time be enacted giving effect to
equivalent levels of welfare provision. This is because ordinary legislation may
simply give effect to the policies of transient political majorities. It is under-
stood that such legislation may be repealed or amended by a subsequent major-
ity. Constitutions, on the other hand, aspire to a greater degree of permanence
in their expression of the states obligations. This is so even if such permanence
takes the relatively modest form of protection against implied repeal, as is the
case with the HRA.
16
Constitutions also aspire to constitute or frame the polit-
ical space in a way that ordinary statutes do not.
17
This may again be illu-
strated in modest form by the capacity of the courts under the HRA to issue
declarations of incompatibility.
18
It is for these reasons that social rights are
unlikely to be constitutionalised in political contexts where the obligations
generated by these rights are not subject to wide political acceptance.
In passing, it should be stressed that this observation does not conceal a
covert desire for a constitution that is politically neutral.
19
As Keith Ewing
notes, every constitution expresses a set of political commitments. Even the as-
piration for a politically neutral constitution hinges on the (political) view
that political pluralism is desirable. However, Ewing also notes that a constitu-
tion is an expression of how a community wishes to be governed.
20
In Joseph
Razs formulation, the constitution is expressive of the common ideology that
governs public life in the country.
21
Given this, where the duties associated
with social rights are not widely accepted, they are likely to be regarded as es-
sentially political in the sense that their status has not been settled.
15 Kymlicka, Contemporary Political Philosophy: An Introduction, 2nd edn (Oxford: Oxford
University Press, 2002) at 159. Everyday libertarianism, the term employed by Murphy and
Nagel to describe a sense of natural entitlement to pre-tax income, is of course more preva-
lent: see The Myth of Ownership: Taxes and Justice (Oxford: Oxford University Press, 2004).
16 Thoburn v Sunderland City Council [2003] QB 151 at paras 62^3.
17 For an illuminating discussion, see Loughlin, Foundations of Public Law (Oxford: Oxford
University Press, 2010) at 275.
18 Section 4 HRA.
19 For an argument that a constitution can achieve political neutrality by embracing the prin-
ciples of liberal democracy, see Oliver, Written Constitutions: Principles and Problems (1992)
45 ParliamentaryAffairs 135 at 150.
20 Ewing, Social Rights and Constitutional Law (1999) Public Law104 at 112.
21 On the Authority and Interpretation of Constitutions: Some Preliminaries in Alexander (ed.),
Constitutionalism: Philosophical Foundations (Cambridge: Cambridge University Press, 1998)
152 at 154.
226 HRLR 12 (2012), 221^253

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Secondly, and more commonly, it may be that the states duty to realise
social rights is generally accepted but there is disagreement about the means
that should be adopted as well as the extent of the states obligations. For
example, it seems uncontroversial to note that universal healthcare forms
part of the common ideology that governs public life in the UK. The previous
Labour governments Green Paper on a proposed Bill of Rights and
Responsibilities identified the foundation of the NHS as one of a series of con-
stitutional landmarks having their origins in Magna Carta in 1215.
22
The cur-
rent coalition government likewise characterises the NHS as an important
expression of our national values and expresses its commitment to a health
service that is free at the point of use and available to everyone based on
need, not the ability to pay.
23
Nevertheless, there is still obviously considerable scope to disagree about ap-
propriate levels of spending on the NHS and the means whereby universal
healthcare should be delivered. A strategy sometimes employed by social
rights advocates in an attempt to circumvent disagreements about the extent
of the states welfare obligations is to argue that democracy can only be sus-
tained if there is a positive duty on the State to ensure that all are equally able
to exercise their democratic rights and participate in society.
24
In essence, the
argument is that fully realised social rights are a precondition of democracy:
an underlying commitment that should not itself be subject to democratic dis-
pute. This is undoubtedly true up to a point: participation in the democratic
process clearly requires some level of material provision.
25
Even so, our under-
lying convictions about distributive justice are likely to manifest themselves
in disagreement about the extent of realisation of social rights that is neces-
sary in order to ensure democratic participation. Some might contend that
the conditions for democratic participation are adequately secured through
existing welfare state institutions such as universal healthcare and free com-
pulsory schooling up to the age of 16.
26
In contrast, Joshua Cohens formula-
tionthe participants in the ideal deliberative procedure should be
substantively equal in that the existing distribution of power and resources
does not shape their chances to contribute to deliberation, nor does that distri-
bution play an authoritative role in their deliberation
27
would seem to
22 UK Ministry of Justice, supra n 1 at 8.
23 The Coalition: Our Programme for Government available at: http://www.cabinetoffice.gov
.uk/news/coalition-documents [last accessed 28 March 2012].
24 Fredman, supra n 11 at 39.
25 Mantouvalou, In Support of Legalisation, in Gearty and Mantouvalou, supra n 3 at 123.
26 Mantouvalou argues that people who live in dire poverty have little opportunity to partici-
pate in democratic government and that a level of basic material provision for all is therefore
necessary: see Gearty and Mantouvalou, supra n 3 at 122. Mantouvalous concern therefore
appears to be with the effects of outright destitution on democratic participation.
27 Deliberation and Democratic Legitimacy, in Hamlin and Pettit (eds), The Good Polity:
Normative Analysis of the State (Oxford: Basil Blackwell, 1989) 17 at 23. This formulation is
cited with approval by Fredman, supra n 11 at 39.
Disagreement and the Constitutionalisation of Social Rights 227

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extend beyond social rights to equalisation of social class and income. The ar-
gument is therefore useful in making the case for constitutional social rights
but is unlikely to neutralise disputes regarding the extent of the states welfare
obligations. The key is therefore to arrive at an understanding of the judiciarys
role in enforcing social rights that provides for some level of oversight but
does not result in the courts prescribing the nature and extent of the states
welfare duties. This point is returned to below.
Thirdly, it may be that political actors generally accept the obligations en-
gendered by social rights but object to the involvement of non-elected judges
in their enforcement. Considerable energy has been devoted to rebutting this
particular variant of the democratic objection to constitutional social rights.
Rosalind Dixon, for example, argues that courts may be well-placed to remedy
imperfections in the legislative process.
28
These may take the form of blind
spots or burdens of inertia. The former arise where legislators fail to recognise
that legislation can be applied in a way that infringes rights. The latter occurs
where various factors lead to legislative inertia so that rights-based protection
is not achieved.
29
Dixons argument that courts can usefully supplement the legislative process
in the realisation of social rights is extremely valuable. Indeed, a key objective
of this article is to develop this argument. However, it should be noted that
it is possible to conceive of circumstances falling outside the categories of
blind spots and burdens of inertia where we might nevertheless regard judi-
cial intervention as necessary and appropriate. For example, the UK case of
Limbuela
30
concerned asylum seekers who were destitute but had been refused
support by the Secretary of State. Such support would normally have been pro-
vided, owing to the statutory prohibition upon asylum seekers taking employ-
ment. However, section 55(1) of the Immigration and Asylum Act 1999
required the Secretary of State to withdraw support where he was not satisfied
that the claim had been made as soon as reasonably practicable after arrival
in the UK. The House of Lords held that the failure to provide such support
amounted to a violation of Article 3 of the European Convention on Human
Rights, the right not to be subjected to torture or inhuman or degrading treat-
ment. In Limbuela, it is doubtful that the legislature suffered from a blind
spot regarding the application of the statute. The effect of the legislationto
thrust a category of asylum seekers into destitutionmust surely have been
appreciated. Nor is it clear that this legislation resulted from a burden of iner-
tia; if anything, legislative inertia would have prevented this rights violation.
28 Creating Dialogue About Socioeconomic Rights: Strong-form Versus Weak-form Review
Revisited (2007) 5 International Journal of Constitutional Law 391.
29 Dixon distinguishes sub-categories of blind spots and burdens of inertia: see Dixon, ibid. at
402.
30 R v Secretary of State for the Home Department, ex parte Limbuela [2005] UKHL 66; [2006] 1 AC
396.
228 HRLR 12 (2012), 221^253

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A more far-reaching line of argument stems from the work of Sandra
Fredman. Fredman argues that judicial enforcement of social rights is demo-
cratically legitimate to the extent that courts are able to further the values of
accountability (by requiring decision-makers to explain and justify their deci-
sions), participation (through the courtroom as opposed to the ballot box) and
equality (by providing opportunities for minorities to participate in the demo-
cratic process).
31
Fredmans position is more far-reaching than Dixons in various respects.
Firstly, as far as equality is concerned, Fredman argues that [w]hen minorities
are excluded from the political process, or their voice is systematically silenced,
representative democracy is not functioning properly. Arguably then, the
democratic role of the judiciary is to remedy this deficit, and it is this which
gives the judicial function its legitimacy.
32
This argument might appear to
echo Dixons concern with legislative blind spots. However, the argument
from equality is more extensive in that it is able to accommodate cases like
Limbuela where legislation impacted harshly upon an unpopular minority
without representation in the political process but where the legislature ap-
peared not to be suffering from a blind spot as far as the application of the
law was concerned.
Regarding accountability, Fredman argues that courts can play a role in the
enforcement of social rights without undermining democracy by requiring
elected representatives to explain and justify their actions to the electorate on
the basis of arguments that are acceptable to all.
33
In making this argument,
Fredman draws on the work of David Dyzenhaus, who himself has sought to
develop Etienne Mureiniks notion of a culture of justification: What justifies
all public power is the ability of its incumbents to offer adequate reasons for
the decisions which affect those subject to them. . . The courts special role is
as an ultimate enforcement mechanism for such justification.
34
This rationale
for constitutional social rights has recently received a powerful endorsement
by the South African Constitutional Court in Mazibuko v City of Johannesburg.
In the words of ORegan J:
A reasonableness challenge requires government to explain the choices
it has made . . . If the process followed by government is flawed or the
information gathered is obviously inadequate or incomplete, appropriate
relief may be sought. In this way, the social and economic rights
31 Fredman, supra n 11 at 103.
32 Ibid. at 109. See further Wesson, Grootboom and Beyond: Reassessing the Socio-Economic
Jurisprudence of the South African Constitutional Court (2004) 20 South African Journal on
Human Rights 284; and Wesson, Equality and Social Rights: An Exploration in Light of the
South African Constitution (2007) Public Law 748.
33 Fredman, supra n 11 at 103.
34 Dyzenhaus, The Politics of Deference: Judicial Review and Democracy, in Taggart (ed.), The
Province of Administrative Law (Oxford: Hart, 1997) 305.
Disagreement and the Constitutionalisation of Social Rights 229

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entrenched in our Constitution may contribute the deepening of democ-
racy. They enable citizens to hold government accountable not only
through the ballot box but also, in a different way, through litigation.
35
This is clearly a powerful argument for constitutional social rights.
However, if accountability is the rationale for extending the jurisdiction of the
courts to this area then the role of the judiciary must clearly be secondary
and disagreements regarding welfare must continue to be played out primarily
through the democratic process. As Dyzenhaus notes, a distinction can be
drawn between a standard that asks whether a non-judicial decision is justifi-
able (whether it is defensible) and one that asks whether it is justified (whether
it coincides with the decision that the judge would have given).
36
If courts gen-
erally applied the latter standard in the field of social rights, they would cease
to be forums of accountability and instead place themselves in the position of
primary decision-makers. The argument that judicial enforcement of social
rights is consistent with democracy would then be difficult to sustain.
Nevertheless, the notion of social rights as imposing a burden of account-
ability on the state usefully augments Dixons argument that in the fulfilment
of positive duties there may be circumstances that should be of particular con-
cern to courts. On the one hand, the argument from accountability is capable
of extending the judicial role beyond the narrow range of circumstances iden-
tified by Dixon. On the other hand, the notion that there are circumstances
that are particularly relevant to judicial capabilitiesand which should there-
fore prompt more searching reviewon the part of courtsis capable of lending
structure to the duty of accountability. Indeed, in the absence of such struc-
ture, accountability is capable of lapsing into decision-makers simply explain-
ing themselves without their explanations being subjected to appropriate
levels of scrutiny.
37
This, in essence, points to the argument that is developed
as this article progresses: social rights should be understood as generating a
standard of reasonableness that is structured by principles that are indicative
of the types of circumstances where courts should be particularly willing to
intervene in welfare decisions.
However, returning to Fredmans argument, the issue that most clearly sep-
arates her position from Dixons is participation. On the one hand, participation
could be understood in the sense outlined by ORegan J in Mazibuko: constitu-
tional social rights enable citizens to participate in the democratic process by
holding government to account through the courts. Fredmans argument goes
35 (2010) 4 SA 1 (CC) at para 71.
36 Law as Justification: Etienne Mureiniks Conception of Legal Culture (1998) 14 South African
Journal on Human Rights 26.
37 Fredman, supra n 11 at 104. Indeed, this appears to be one of the difficulties with the
Mazibuko decision. For discussion, see Wesson, Reasonableness in Retreat? The Judgment of
the South African Constitutional Court in Mazibuko v City of Johannesburg (2011) 11 Human
Rights Law Review 390.
230 HRLR 12 (2012), 221^253

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further by invoking the notion of deliberative democracy, which requires par-
ties to come into the process prepared to produce reasons for their opinions
which can convince others, but also prepared to be convinced themselves.
38
This is distinguishable from what Habermas terms interest bargaining where
communication is undertaken for the purpose of forcing or inducing the op-
ponent to accept ones claim.
39
Fredmans contention is that courts are capable
of perfecting democracy by steering decision-making away from interest bar-
gaining and functioning as forums for deliberation.
40
Admittedly, the adversar-
ial judicial process might not appear to resemble a deliberative framework.
However, human rights disputes can be fashioned in a way that transcends
the bipolar nature of common law procedure. For example, rules of standing
and intervention can be adapted so that a wider range of perspectives is per-
mitted to enter into the debate.
41
This rationale for constitutional social rights moves considerably beyond the
argument from accountability. The accountability argument presupposes that
democratic legitimacy vests primarily in the legislature but courts are able to
enhance the democratic process by providing a level of supervision. The argu-
ment from deliberative democracy would seem to imply that courts are poten-
tially themselves democratic institutions. If so, disagreements about welfare
need not be resolved primarily through the political process with courts adopt-
ing a role that is generally secondary. Courts have sufficient democratic legit-
imacy to themselves resolve such disputes. This may have consequences for
Dyzenhauss distinction between judicial standards that ask whether a decision
is justified or justifiable. Although this distinction is fundamental to the
notion of courts as forums of accountability, it would seem not to be required
by the notion of courts as deliberative forums. The argument from deliberative
democracy therefore implies a more assertive role for the courts in enforcing
social rights than the argument from accountability. Admittedly, Fredman
takes care to argue that judges should not have the power to make primary de-
cisions as to how resources should be allocated.
42
However, Fredman also con-
tends that the standard applied by courts in social rights cases should
generally be one of proportionality which would require the state to demon-
strate that the steps it is taking are the most appropriate means of achieving
the right.
43
It may be that this approach sits uneasily with an understanding
of the judicial role rooted more squarely in the value of accountability. The ap-
proach developed in this article is that the courts should generally apply a
38 Fredman, supra n 11 at 105.
39 Ibid. at 35.
40 Ibid. at 105.
41 Ibid. at 107.
42 Fredman, supra n 3 at 317.
43 Ibid.
Disagreement and the Constitutionalisation of Social Rights 231

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less demanding standard of reasonableness in social rights adjudication, with
the potential for this to harden into proportionality in particular types of cases.
The argument from deliberative democracy is ingenious for its subversion of
the democratic objection to constitutional social rights. But it is submitted
that there are reasons to be wary of this approach. The key problem, as
Fredman notes, is the role of judges. Even if adjudication can be made resemble
deliberation, why surrender the final decision to unelected officials? The
entire office of the judiciary is designed to insulate judges from democratic
pressures as these are normally understood. In this light, it seems questionable
to cast judges as agents of deliberative democracy. Put differently, if one were
to design deliberative forums to supplement the legislative process, it seems
doubtful that they would be modelled on courts. Of course, these concerns
might be countered by noting that in jurisdictions such as the UK courts do
not have the final say about rights disagreements. Instead, courts are only
able to exercise a power of weak form judicial review, which returns the re-
sponsibility to Parliament to take further action to comply with its human
rights obligations. The decision is therefore binding on the parties before the
court but the principle established by the case is revisable in the long-term
through the dynamic forum of deliberative democracy.
44
However, this imme-
diately limits the reach of the argument to jurisdictions where weak form as
opposed to strong form judicial review exists. In jurisdictions such as the
United States and South Africa, courts are quite capable of entrenching prin-
ciples that are only revisable through constitutional amendment or subsequent
judicial decision. Furthermore, the distinction between weak form and strong
form judicial review should not be overstated. Even supporters of the distinct-
iveness of parliamentary bills of rights take the view that the best under-
standing of the model is a presumption that legislatures will generally abide
by judicial decisions.
45
Fredman notes further concerns relating to expense,
elitism and inaccessibility before concluding that the courts may need to be
restructured if they are to be taken seriously as deliberative fora.
46
For all of these reasons it is submitted that the argument from deliberative
democracy should be approached with caution. However, the accountability
rationale for social rights can be advanced independently of this argument.
It is with the elaboration and development of this rationale that the remainder
of the article is concerned.
44 Ibid. at 109.
45 Gardbaum, How Successful and Distinctive is the Human Rights Act? An Expatriate
Comparatists Assessment (2011) 74 Modern Law Review 195 at 204. For a sceptical view
about the distinctiveness of parliamentary bills of rights, see Hiebert, Parliamentary Bills of
Rights: An Alternative Model? (2006) 69 Modern Law Review 7.
46 Fredman, supra n 11 at 107.
232 HRLR 12 (2012), 221^253

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3. The South African Constitutional Court and the
Standard of Reasonableness
Against this background, the interest generated by the South African
Constitutional Courts social rights jurisprudence is unsurprising. To under-
stand why, we need to provide a brief overview of the South African social
rights jurisprudence. Of course, the majority of the Constitutional Courts
social rights judgments are now very well known and have been widely dis-
cussed. It is therefore not my intention to provide a comprehensive overview
of these decisions.
47
The article instead focuses on two issues: the standard of
review employed by the Constitutional Court and the extent to which the
Court has been willing to give content to social rights. Greater attention is
given to the more recent Mazibuko decision because it is less well known and
because it is particularly relevant to the themes of the article. It should also
be noted that the focus is on the Courts adjudication of the positive duties to
promote and fulfil social rights rather than the emerging and intriguing juris-
prudence concerning the negative duty to respect social rights.
48
The Constitutional Courts first social rights decision was Soobramoney
49
in
which Chaskalson CJ purported to apply a rationality standard in upholding
the decision of a state hospital to deny regular renal dialysis to the appellant.
50
However, there are indications that the standard was somewhat more search-
ing than bare rationality. For example, Chaskalson CJ was willing to consider
the less restrictive alternatives suggested by the appellantsuch as the renal
unit working overtimeand explain why these were not viable.
Soobramoney was followed by Grootboom
51
in which a group of destitute
people claimed that their circumstances violated the right of access to ad-
equate housing. In a departure from the rationality standard applied in
Soobramoney the Court held that a reasonableness standard should be applied
in social rights cases. As for what reasonableness entails, the Court em-
phasised that the precise contours and content of the measures to be adopted
are primarily a matter for the legislature and executive.
52
The state housing
programme was nevertheless found to be unreasonable to the extent that it
failed to make adequate provision for destitute people. Importantly, the Court
47 For an excellent overview, see Liebenberg, South Africa: Adjudicating Social Rights under a
Transformative Constitution, in Langford (ed.), Social Rights Jurisprudence: Emerging Trends in
International and Comparative Law (Cambridge: Cambridge University Press, 2009) 75.
48 For discussion, see Liebenberg, ibid. at 91^5; and Pillay, Towards Effective Social and
Economic Rights Adjudication: The Role of Meaningful Engagement (2012) International
Journal of Constitutional Law (forthcoming).
49 Soobramoney v Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC).
50 Chaskalson CJ in Soobramoney (ibid. at para 29) held that [a] court will be slow to interfere
with rational decisions taken in good faith by the political organs and medical authorities
whose responsibility it is to deal with such matters.
51 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC).
52 Ibid. at para 41.
Disagreement and the Constitutionalisation of Social Rights 233

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declined to adopt a minimum core approach which would have entitled all
destitute individuals to claim assistance as a matter of right, finding that it
had insufficient information to determine the content of the minimum core.
53
The Court instead found that reasonableness required the introduction of
a programme catering to destitute individuals, the exact form and extent of
which was left in the hands of the state.
54
In Treatment Action Campaign (TAC)
55
the Constitutional Court ordered the
government to make Nevirapine, an anti-retroviral drug that reduces
mother-to-child transmission of HIV/AIDS, generally available in the public
health sector. The Court reiterated its aversion to the minimum core, finding
that courts are not institutionally equipped to make the wide-ranging factual
and political enquiries necessary for determining what the minimum core
standards . . . should be.
56
In the view of the Court, the Constitution instead
contemplated a restrained and focused role for the judiciary in social rights
adjudication.
57
The subsequent case of Khosa
58
concerned a challenge to those provisions
of the Social Assistance Act 59 of 1992 that reserved welfare benefits solely
for South African citizens. The applicants, who were permanent residents,
argued that these provisions were inconsistent with the right of access to
social security and the right to equality under the South African Bill of
Rights. Mokgoro J held that an obligation not to unfairly discriminate is impli-
cit in the reasonableness standard and that the exclusion of permanent resi-
dents from welfare benefits was therefore unconstitutional. Mokgoro J took
care to emphasise that reasonableness should not be conflated with rationality
review.
59
The intersection between the right of access to social security and
the right to equality also prompted the Court to inject a measure of proportion-
ality into the reasonableness standard.
60
Khosa arguably represents the most
53 Ibid. at paras 32^3.
54 Grootboom is sometimes criticised on the basis that Irene Grootboom, in whose name the case
was brought, died years later without a home. See Joubert Grootboom dies homeless and
penniless Mail & Guardian, 8 August 2008, available at: http://mg.co.za/article/2008-
08-08-grootboom-dies-homeless-and-penniless [last accessed 28 March 2012]. However, the
positive consequences of the judgment should not be too lightly dismissed. Most notably, as
a result of the judgment, chapter 12 of the National Housing Code now makes provision for
people with urgent housing needs. That said, the states implementation of the judgment was
unacceptably tardy. See Liebenberg, supra n 47 at 99.
55 Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC).
56 Ibid. at para 37.
57 Ibid. at para 38.
58 Khosa v Minister of Social Development 2004 (6) SA 505 (CC).
59 Ibid. at para 67.
60 Mokgoro J in Khosa (supra n 58 at para 67) held that inconsidering whether that exclusion is
reasonable, it is relevant to have regard to the purpose served by social security, the impact
of the exclusion on permanent residents and the relevance of the citizenship requirement to
that purpose.
234 HRLR 12 (2012), 221^253

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intensive standard of review applied by the Constitutional Court in a social
rights decision.
61
The Constitutional Courts most recent social rights judgment of note con-
cerning the duties to promote and fulfil is Mazibuko.
62
In essence, Mazibuko
concerned the constitutionality of the installation of pre-paid water meters in
Phiri, a poor suburb of Soweto. From a constitutional perspective, pre-paid
meters are of concern for various reasons, not least because of their potential
impact on people who are unable to afford to purchase water. However, there
were factors that mitigated the apparent hardship of the policy, including the
fact that in terms of the City of Johannesburgs free basic water policy each
accountholder in the City was entitled to six kilolitres of free water per month.
Before the Constitutional Court, the constitutionality of the installation of
pre-paid water meters and the free basic water policy were challenged on vari-
ous grounds. For the purposes of this article, two issues are of particular inter-
est. Firstly, it was argued that the Court should determine the content of the
right to sufficient water by specifying that the quantity of water necessary for
dignified life in areas such as Phiri is 50 litres per person per day. It was fur-
ther argued that the Court should then determine whether the State had
acted reasonably in seeking to achieve the progressive realisation of this right.
It is important to see that this is a different argument to the minimum core ar-
gument that was rejected by the Constitutional Court in Grootboom and TAC.
The minimum core entails that social rights generate a minimum level of pro-
vision that the state should realise as a matter of priority. In Mazibuko, in con-
trast, the argument was not that the Court should stipulate a minimum level
of provision but rather that it should specify the content of the right in its en-
tirety. Nevertheless, the argument was rejected for essentially the same
reason that the minimum core was rejected in Grootboom and TAC, namely,
that it is ordinarily institutionally inappropriate for a court to determine pre-
cisely what the achievement of any particular social and economic right en-
tails and what steps government should take to ensure the progressive
realisation of the right.
63
The second issue is the standard of review applied by the Constitutional
Court in Mazibuko. Like the Courts previous decisions, Mazibuko is cast in the
language of reasonableness. However, there are indications that it is signifi-
cantly more deferent than Grootboom, TAC and Khosa. For example, the Courts
reading of the Water Services Act 108 of 1997which appeared to preclude
61 One indication of this was the Courts willingness to review the social security budget to de-
termine whether making provision for permanent residents was affordable: see Khosa, supra
n 58 at para 62.
62 Mazibuko v City of Johannesburg 2010 (4) SA 1 (CC). For further discussion, see Wesson,
Reasonableness in Retreat? supra n 37. Another recent, albeit less significant, decision con-
cerning positive obligations is Nokotyana and Others v Ekurhuleni Metropolitan Municipality
2010 (4) BCLR 312 (CC).
63 Mazibuko, supra n 35 at para 61.
Disagreement and the Constitutionalisation of Social Rights 235

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pre-paid meters by stipulating procedural safeguards relating to notice and
representation in the limitation or discontinuation of water serviceswas
highly deferential and arguably implausible.
64
The installation of pre-paid
meters in a predominantly black area, coupled to the long-term aim of extend-
ing these to other predominantly black areas in Johannesburg, would also
seem to raise concerns relating to indirect discrimination. However, the Court
held that there were no equality concerns and that even if there were these
did not amount to unfair discrimination.
65
In contrast to Khosa, the Court
did not treat the apparent intersection between a social right and the right
to equality as a reason to apply a heightened standard of review. Indeed, it
is arguable that Mazibuko is even more deferent than Soobromoney, a case
often regarded as a false start to the Courts social rights jurisprudence. In
Soobramoney, the Court was at least willing to consider less restrictive alterna-
tives to the challenged policy. In contrast, lacking from Mazibuko is any consid-
eration of whether the states legitimate objectivesto reduce unaccounted
for water, rehabilitate the water network, reduce water demand and improve
rates of payment
66
could have been pursued through means less restrictive
than the installation of pre-paid water meters.
Nevertheless, taken as a whole, the Constitutional Courts social rights deci-
sions have attracted widespread attention and clearly hold appeal. In an early
endorsement, Cass Sunstein praised the Grootboom decision as representing a
novel and exceedingly promising approach to judicial protection of socioeco-
nomic rights.
67
More recently, Malcolm Langford has argued that the
Hungarian Constitutional Court should embrace a model of reasonableness
review for all the dimensions of social rights . . .
68
In the UK, the most striking
example of the influence of the Constitutional Courts social rights decisions
can be found in the JCHRs proposals for a British Bill of Rights. Drawing on
the South African case law, the JCHR advocates a reasonableness approach
for judicial enforcement of social rights. In order to ensure that courts follow
this approach, the JCHR makes the innovative suggestion that additional word-
ing should be included in the Bill of Rights so as to ensure that the judicial
role would be appropriately circumscribed.
69
In essence, the JCHR recommends
that the South African social rights jurisprudence should be crystallised in
64 Ibid. at paras 115^24. See further Wesson, supra n 37.
65 Ibid. at paras 148^58.
66 The City of Johannesburg was seeking to reduce unaccounted for water, rehabilitate the
water network, reduce water demand and improve rates of payment: see Mazibuko, ibid. at
para 13.
67 Designing Democracy: What Constitutions Do (Oxford: Oxford University Press, 2001) at 221.
68 Hungary: Social Rights or Market Redivivus? in Langford, supra n 47 at 266.
69 See JCHR, supra n 2 at 43.
236 HRLR 12 (2012), 221^253

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the text of a British Bill of Rights.
70
And, finally, there is the fact that the
Optional Protocol to the ICESCR provides for a reasonableness test.
71
In light of the discussion in the previous section, the reasons for the appeal
of the South African case law should be obvious. The reasonableness standard
holds the promise of deepening accountability while also not placing courts
in the position of primary decision-makers. As Yacoob J held in Grootboom, a
court considering reasonableness will not enquire whether other more desir-
able or favourable measures could have been adopted, or whether public
money could have been better spent.
72
In endorsing Grootboom, Sunstein
noted that the virtue of the Courts approach is that it is respectful of demo-
cratic prerogatives and of the limited nature of public resources, while also
requiring special deliberative attention to those whose minimal needs are
not being met.
73
Likewise, for the JCHR the advantage of the South African
approach is that implementation of social rights is still primarily through
democratic processes rather than the courts, but with the possibility of a
degree of judicial involvement in extreme cases . . .
74
However, the difficulty is that there is also a widely held view that reason-
ableness ensures insufficient protection for social rights. Most obviously, only
a trickle of cases has emerged from the Constitutional Court.
75
For some, the
problem with the reasonableness standard is its vagueness, which makes it dif-
ficult for prospective social rights claimants to confidently assert that their
rights have been violated.
76
Others argue that reasonableness accords insuffi-
cient priority to those who are worst-off or whose needs are most urgent.
77
In
the face of these critiques, the majority of commentators have seen the solution
as lying in the Constitutional Court giving more detailed content to social
70 Although this is the JCHRs ambition, it should be noted that the Committees reading of the
South African case law is highly restrictive. Firstly, the Committee describes (at para 171)
the Constitutional Court as having made use of the English administrative law concept of
unreasonableness, which has a very high threshold, to ensure that the courts will only
very rarely intervene to uphold social and economic rights. From the above discussion, it
should be clear that reasonableness as applied by the Constitutional Court in social rights de-
cisions is a more intensive standard thanWednesbury reasonableness review. As well as this,
the JCHR states (at para 172): Individuals do not have legally enforceable rights against the
state to full protection of the rights recognised in the Bill of Rights. There is nothing in the
Constitutional Courts case law to suggest that individuals are unable to approach the courts
to vindicate their social rights.
71 Article 8(4). For discussion, see Griffey, The Reasonableness Test: Assessing Violations of
State Obligations under the Optional Protocol to the International Covenant on Economic,
Social and Cultural Rights (2011) 11 Human Rights Law Review 275.
72 Grootboom, supra n 51 at para 41.
73 Sunstein, supra n 67 at 221.
74 JCHR, supra n 2 at para 172.
75 This point has been noted by both critics and proponents of constitutional social rights: see,
for example, Gearty, supra n 3 at 79; and Fredman, supra n 11 at 123.
76 In an oft-quoted remark Bilchitz argues that reasonableness seems to stand in for whatever
the court regards as desirable features of state policy. See Bilchitz, Towards a Reasonable
Approach to the Minimum Core (2003) 19 South African Journal on Human Rights 1 at 10.
77 See, for example, Liebenberg, supra n 47.
Disagreement and the Constitutionalisation of Social Rights 237

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rights.
78
In essence, the argument is that reasonableness threatens to drain
social rights of their substantive content and reduce them to mere procedural
requirements. It is also argued that the reasonableness standard cannot be co-
herently applied in the absence of an analysis of the content of social rights.
This is because the reasonableness or otherwise of the governments action
must be determined in relation to whether its measures were reasonable at-
tempts to realise progressively the right in question. Such an enquiry requires
content to be given to the right.
79
It is to the suggestion that courts should
accord detailed substance to social rights that we now turn.
4. The Substance of Social Rights
The argument that the Constitutional Court should accord detailed substance
to social rights takes various forms. Most recently, as we saw in the discussion
of Mazibuko, it was argued that the Court should determine the content of the
right of access to sufficient water by specifying that the quantity of water ne-
cessary for dignified life in areas such as Phiri is 50 litres per person per day.
The argument was not that the Court should find that everyone in Phiri is im-
mediately entitled to 50 litres of water per person per day, but rather that the
Court should evaluate whether the state had acted reasonably in seeking to
progressively make that level of provision available.
It is noteworthy that in some jurisdictions courts have been willing to deter-
mine the content of social rights with a high level of specificity. The Indian
Supreme Court provides a good example. In Peoples Union for Civil Liberties v
Union of India, as part of the right to food litigation, the Supreme Court held
that every child in every government and government assisted primary school
should be provided with a cooked midday meal. The Court further specified
that the midday meal should ensure a minimum content of 300 calories and
8^12 grams of protein each day of school for a minimum of 200 days. In the
same order, the Court stipulated that as part of the Integrated Child
Development Scheme each child up to six years of age should be provided
with 300 calories and 8^10 grams of protein; each adolescent girl 500 calories
and 20^25 grams of protein; each pregnant woman and nursing mother 500
78 This argument has been advanced by many commentators: for a selection, see Bilchitz,
Giving Socio-Economic Rights Teeth: The Minimum Core and its Importance (2002) 119
South African Law Journal 484; Brand, The Proceduralization of South African
Socio-Economic Rights Jurisprudence, or What are Socio-Economic Rights For?, in Botha
et al. (eds), Rights and Democracy in a Transformative Constitution (Stellenbosch: Sun Press,
2003) 33; Pieterse, Coming to Terms with the Judicial Enforcement of Socio-Economic
Rights (2004) 20 South African Journal on Human Rights 1; and Davis, Adjudicating
Socio-Economic Rights in the South African Constitution: Towards Deference Lite (2006)
22 South African Journal on Human Rights 301.
79 Bilchitz, ibid. at 8.
238 HRLR 12 (2012), 221^253

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calories and 20^25 grams of protein; and each malnourished child 600 cal-
ories and 16^20 grams of protein.
80
However, this was an approach that the South African Constitutional Court
declined to adopt in Mazibuko, finding that it would be inappropriate for the
Court to determine precisely what the achievement of a particular social right
entails. Although aspects of the Mazibuko decision are problematic, it is sub-
mitted that the Court was correct to decline to determine the content of the
right of access to sufficient water with this level of specificity. As ORegan J
noted, the expert evidence revealed numerous different answers regarding the
question of what constitutes sufficient water and courts are ill-suited to resolve
these disagreements for both democratic and institutional reasons.
81
Both of these concerns require elaboration. As far as the democratic objec-
tion is concerned, the difficulty is that prescribing the exact content of social
rights would be tantamount to the judiciary determining the extent of the
states welfare obligations. However, this is precisely the issue that constitutes
a key political dividing line in many democracies and which is therefore
better settled through democratic politics. If the role of the courts in enforcing
constitutional social rights is best understood in terms of accountabilityas
opposed to, for example, deliberationthen it is doubtful that they are the ap-
propriate institutions to undertake this determination.
As well as this, there are concerns relating to expertise. These can be illu-
strated with reference to the decisions of the High Court and Supreme Court
of Appeal in the Mazibuko litigation. In the High Court, Tsoka J accepted that
the court was competent to determine the basic water supply,
82
or the quan-
tity of water that should be provided free of charge to every accountholder in
the City of Johannesburg. At the time of the judgment, the free basic water
supply was six kilolitres per household per month. In a household of eight
people this amounts to 25 litres per person per day. Justice Tsoka found that
this amount of water was inadequate to meet the basic needs of Phiri residents,
especially given that many households in Phiri contain more than eight
people. Drawing on expert evidence presented to the court, Tsoka J held that
the City of Johannesburg should instead provide the residents of Phiri with
50 litres of water per person per day.
However, in the Supreme Court of Appeal it emerged that the expert evi-
dence on which Tsoka J relied was not uncontested. Further expert evidence
was adduced claiming that 42 litres per person per day would constitute
80 Order dated 28 November 2001, in W.P.(C) No 196/2001 (Peoples Union for Civil Liberties v
Union of India). The orders issued by the Supreme Court as part of this litigation are available
at: www.righttofoodindia.org/orders/nov28.html [last accessed 28 March 2012]. For a general
discussion of the Supreme Courts social rights case law, see Muralidhar, India: The
Expectations and Challenges of Judicial Enforcement of Social Rights in Langford, supra n
47 at 102.
81 Mazibuko, supra n 35 at para 62.
82 2008 (4) SA 471 (W) at para 133.
Disagreement and the Constitutionalisation of Social Rights 239

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sufficient water within the meaning of section 27 of the Constitution. The fact
that this evidence was not placed before the High Court is troubling. It sug-
gests that courts will frequently not have the full range of evidence placed
before them in light of which an informed decision about the content of a
given social right can be reached. Of course, members of the legislative and ex-
ecutive branches of government might also reach decisions about the content
of social rights without being appraised of all relevant information. But legisla-
tive and executive decision-makers are able to review and if necessary set
aside their decisions more easily than courts. Such decision-makers do not op-
erate a system of precedent. Nor do they have to wait to be approached by a liti-
gant before departing from an earlier decision.
In the event, the Supreme Court of Appeal opted for the lower amount of 42
litres per person per day, finding that on the papers there was no basis for pre-
ferring the evidence of one of the experts to that of the other.
83
It is submitted
that this rather arbitrary determination underscores the point that the judi-
ciary is not the branch of government that is best placed to determine the
exact content of social rights.
Of course, none of this should be taken to mean that social rights should not
be accorded content or that their content raises non-justiciable issues. In its
General Comment on the Right to Water, the United Nations Committee on
Economic, Social and Cultural Rights (CESCR) declined to give exact content
to the right to water, stating that the adequacy of water may vary according
to different conditions.
84
However, the Committee stated that three factors
apply in all circumstances viz availability, quality and accessibility.
85
There is
no reason why courts cannot review legislative and executive determinations
of the content of social rights in light of principles such as these, which could
form part of the reasonableness standard. Indeed, in Mazibuko ORegan J was
willing to consider whether the free basic water allowance was sufficient not-
withstanding the Constitutional Courts reluctance to itself give content to the
right.
86
Nevertheless, it should be clear that on this issue the Court regarded
its jurisdiction as supervisory and took care not to place itself in the position
of primary decision-maker. It should also be clear that this amounts to a coher-
ent application of reasonableness, notwithstanding Bilchitzs argument that
the reasonableness of social programmes can only be determined where
courts are themselves willing to give content to social rights.
The Constitutional Court has also been urged to give content to social rights
through the concept of the minimum core. Given the extensive literature on
83 The City of Johannesburg v Mazibuko 2009 (3) SA 592 (SCA) at para 24.
84 General Comment No 15: The right to water (arts 11and 12), 20 January 2003, E/C.12/2002/11;
10 IHRR 303 (2002) at para 12.
85 Ibid.
86 Mazibuko, supra n 35 at paras 86^9.
240 HRLR 12 (2012), 221^253

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this topic,
87
it is not my intention to revisit this debate in its entirety. However,
I will attempt to indicate how the minimum core is relevant to the themes of
this article. The minimum core has its origins in the general comments of the
CESCR.
88
Although subject to some ambiguities,
89
its essence is that even
though social rights are subject to progressive realisation there is a minimum
level of provision that should be made available on an immediate or prioritised
basis. The minimum core is generally understood as giving rise to individual
entitlements to this basic level of provision.
90
Furthermore, any attempts to
derogate from the minimum core should trigger a heightened level of
justification.
91
The minimum core therefore embodies an idea of prioritisation in the real-
isation of social rights. The justification for this that has been most commonly
advanced is that certain needs are more urgent than others and the state
should therefore cater to these needs first before moving onto other less press-
ing needs.
92
This can be illustrated with reference to the right to housing. In
circumstances where some people are destitute, advocates of the minimum
core argue that the state should not expend resources on, for example, housing
subsidies that are likely only to benefit people who already have some form of
shelter. Rather, the state should initially ensure that everyone is provided
with a basic level of shelter before moving on to other less urgent needs.
For its proponents, the minimum core holds various attractions, one of
which is that it would seem to require the judiciary to accord substance to
social rights by specifying the content of the minimum core. Nevertheless, it
is an approach that the Constitutional Court has steadfastly refused to adopt.
This has led to widespread debate in the South African academic community
and beyond. However, in my view the Constitutional Courts wariness of the
concept is justified. Of course, this might be seen as a debate that has greater
resonance in the South African and developing world context. In a jurisdiction
where there is widespread deprivation and limited state capacity it is perhaps
87 In the South African context, the foremost proponent of the minimum core is Bilchitz; see
especially Bilchitz, Poverty and Fundamental Rights: The Justification and Enforcement of
Socio-economic Rights (Oxford: Oxford University Press, 2007).
88 See in particular General Comment No 3: The nature of States parties obligations (art. 2, para
1), 14 December 1990, E/1991/23; 1-1 IHRR 6 (1994) at para 10.
89 For discussion, see Langford and King, Committee on Economic, Social and Cultural Rights
in Langford, supra n 47 at 477.
90 See, for example, General Comment No 15, supra n 84 at para 44. Notwithstanding this, some
minimum core advocates appear to have developed doubts about whether the minimum
core should be understood as generating individual entitlements. Bilchitz, supra n 87 at
204, for example, writes that it is not desirable to adopt an overly rigid policy in relation to
individual relief and the relief granted should not generally involve any special orders to the
individuals who brought the case; rather, it should seek to indirectly benefit the litigants
through the general order that is made. Of course, on this approach the distinction between
Grootboom and the minimum core becomes less clear.
91 Fredman, supra n 11 at 84^7.
92 See generally Bilchitz, supra n 87.
Disagreement and the Constitutionalisation of Social Rights 241

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understandable for the Constitutional Court not to jeopardise its legitimacy by
handing down orders that are unlikely to be fulfilled. In the developed world
one might argue that the minimum core has generally already been realised
through the welfare state.
93
However, it is submitted that there are difficulties with the concept that
apply even in jurisdictions such as the UK. The key problem is that in certain
contexts the content of the minimum core is deeply ambiguous. By way of il-
lustration, the minimum core of the right of access to housing initially seems
fairly straightforward. Here the minimum core corresponds to that which is
necessary to meet the basic needs of those who are destitute. But the core con-
tent of rights such as health and social security is less obvious. This is because
in these contexts those who are worst-off have exceptionally diverse and
far-reaching needs. In respect of the right to health, the category includes not
only people without access to primary healthcare but also people whose lives
are threatened by illnesses that require on-going and expensive medical treat-
ment. Attempting to meet all of these needs as a matter of individual entitle-
ment might seem to result in an elaborate and ultimately unworkable
obligation.
Nevertheless, this is an approach that courts have been willing to take in
some jurisdictions. The Colombian Constitutional Court, for example, has held
that in exceptional circumstances the right to social security is not a program-
matic right but is capable of immediate enforcement on an individualised
basis. According to Magdalena Sepu lveda, this occurs when individuals are in
a position of manifest vulnerability (debilidad manifiesta) in which the immedi-
ate protection of their rights is required to prevent jeopardy to their dignified
existence.
94
In such situations, the Court will order the State to comply imme-
diately with its duty to provide social assistance. For example, in what is
described as a landmark decision,
95
the Court ordered that a 63 year old man
living in absolute poverty, without contact with his family, should be provided
with economic assistance so that he could undergo an eye operation that
would enable him to recover his sight.
The Colombian Constitutional Court has taken a similar approach to the
right to health. Although the right is generally progressive in nature it
may crystallise into an immediate entitlement where there is a nexus with a
93 See, for example, Fredman, supra n 3 at 317.
94 Colombia: The Constitutional Courts Role in Addressing Social Injustice in Langford, supra n
47 at 144 and 150. The test can be stated in more detailed form as follows: (a) the individual
is in a situation of manifest vulnerability (debilidad manifiesta) because of his economic, phys-
ical of mental situation; (b) there is no possibility for the individual or his family to take
action to remedy the situation; (c) the State has the possibility to remedy or mitigate his con-
dition; and (d) the States inaction or omission will affect the individuals ability to enjoy min-
imum conditions of a dignified life. See, for example, T-533/92.
95 Ibid.
242 HRLR 12 (2012), 221^253

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fundamental right such as life, integrity or dignity.
96
On this basis, the Court
has in several cases ordered social security entities and private health pro-
viders to make treatment available to HIV/AIDS patients.
97
An especially assert-
ive approach is taken where the Court is concerned with the healthcare rights
of children. In the so-called overseas treatment cases, the Court has ordered
public and private healthcare providers to cover the expenses involved in
undertaking treatment outside Colombia where no national treatment is avail-
able. For example, in a 1995 decision the Court ordered that a girl who suffered
from leukaemia and needed a complex transplant that could not be provided
in Colombia should be provided with treatment at a specialised clinic in the
United States.
98
A similarly expansive approach has been taken by courts adjudicating the
right to health under the Brazilian Federal Constitution. In a seminal 1992 de-
cision the Supreme Federal Tribunal held as follows:
The right to health ^ as well as a fundamental right of all individuals ^
represents an inextricable constitutional consequence of the right to
life . . .The interpretation of a programmatic norm cannot transform it
into a toothless constitutional promise . . . Between protecting the inviol-
ability of the right to life, an inalienable fundamental right guaranteed
by the Constitution itself (article 5, main clause) or ensuring, against
this fundamental prerogative, a financial and secondary interest of the
state, I believe ^ once this dilemma is established ^ ethical and legal rea-
sons impose on the judge one single and possible option: unswerving re-
spect for life.
99
The result of this judgment has been an approach characterised by a preva-
lence of individualized claims demanding curative medical treatment (most
often drugs) and an extremely high success rate for the litigant.
100
Right to
health litigation has spread from HIV/AIDS cases in the late 1990s to multiple
other areas, including diabetes, Parkinsons disease, Alzheimers disease, hepa-
titis C and multiple sclerosis.
101
96 Ibid. at 152.
97 Ibid. at 157. The Court has even ordered that Viagra be provided to a claimant on the basis that
a mans sexual function is so vital that it forms part of his dignified life: see T-926/99.
98 T-165/95. The test applied by the Court in determining whether overseas treatment should be
made available may be stated as follows: (a) there are circumstances of extreme gravity that
affect the life of the patient; (b) the required medical treatment cannot be undertaken in
Columbia; (c) there is medical certification that the treatment would be effective in the par-
ticular circumstances of the patient; and (d) the individual is unable to cover the cost, but
the State has the resources available to do so. See Sepu lveda, Colombia: The Constitutional
Courts Role in Addressing Social Injustice in Langford, supra n 47 at 153.
99 RE 271.286 AgR-RS (2000), Relator Min. Celso de Mello. Quoted in Ferraz The Right to Health
in the Courts of Brazil: Worsening Health Inequities? (2009) 11 Health and Human Rights 33.
100 Ibid. at 34.
101 Ibid. at 35.
Disagreement and the Constitutionalisation of Social Rights 243

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The jurisprudence developed by the Colombian Constitutional Court and the
Brazilian courts might seem to represent an expansive minimum core ap-
proach, in terms of which all urgent needs are met as a matter of immediate in-
dividual entitlement. To what extent, then, does the case law of these courts
constitute an argument for a similar approach on the part of the South
African Constitutional Court? Barriers of language and culture mean that
English speaking common lawyers such as myself should approach the case
law of these courts with some caution. Nevertheless, it is submitted that there
are reasons for concern. The first is the apparent indifference of these courts
to the financial implications of their judgments. Commenting on the
Colombian Constitutional Court, Sepu lveda writes that for the Colombian
Constitutional Court, when life is in danger, the right to health is justiciable,
notwithstanding the budgetary issues that enforcement of the right may
raise.
102
Furthermore, although these judgments have significant budgetary
implications, the Court makes an effort not to fall into a utilitarian calculus,
but rather to place the protection of the individual dignity at the centre of its
decisions.
103
In a similar vein, Flavia Piovesan argues that the judgments of
the Brazilian courts illustrate a clear preference for the respect for life as an
inalienable subjective right ensured by the Constitution itself rather than for
the financial or other secondary interests of the State.
104
An initial difficulty with this approach is that under the ICESCR and many
other human rights instruments social rights are expressly limited by the
availability of resources, at least in respect of the duty to promote and fulfil
social rights. The resource implications of a social rights judgment should
therefore not be treated as a matter of indifference. Furthermore, social rights
are qualified by the availability of resources for a good reason, which is that
in reality resources are not unlimited.
105
Ferraz has developed an especially
trenchant critique of the case law of the Brazilian courts. As noted, the
Brazilian case law is characterised by a prevalence of individualised claims de-
manding curative treatment and a high success rate for the litigant. To put
the extent of litigation in perspective, in 2008 the state of Sa o Paulo spent ap-
proximately US $200 million to comply with court orders benefiting
102 Sepu lveda, supra n 98.
103 Ibid. at 154. Sepu lvedas suggestion that taking account of budgetary implications in adjudi-
cating social rights would somehow amount to a utilitarian approach to human rights is mis-
conceived. With some exceptions, most accounts of human rights allow that rights can be
limited by countervailing considerations provided that these are sufficiently compelling. A
utilitarian approach is avoided not by ignoring budgetary implications but rather by ensuring
that rights are accorded appropriate weight in the courts deliberations. This point is returned
to below.
104 Piovesan, Brazil: Impact and Challenges of Social Rights in the Courts in Langford, supra
n 47 at 182, 185.
105 Nevertheless, in a vaguely surreal passage Piovesan (ibid. at 185) appears to criticise what he
terms the classical liberal approach for postulating that the budget is limited, finite and in-
sufficient to guarantee full economic support for all public policies.
244 HRLR 12 (2012), 221^253

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approximately 35000 successful claimants. In Ferrazs view, given that re-
sources are always scarce in relation to the health needs of the population as
a whole this approach can only be sustained at the expense of universality.
The individuals who are able to access the judiciary are relatively privileged
with the result that right to health litigation may well be worsening health
inequities in Brazil as resources are diverted from larger and less advantaged
groups who cannot easily access the courts to protect their interests.
106
In this light, an expansive minimum core approach, which would require
the state to meet all urgent needs as a matter of individual entitlement, seems
inadvisable. Some minimum core proponents have attempted to overcome this
difficulty by advocating a pragmatic rather than a principled approach to the
content of the minimum core. By this argument, it is possible to determine
the core content of rights such as health through aconglomeration of . . . prin-
cipled and pragmatic considerations.
107
It is no doubt correct that the content
of social rights should be determined by taking a range of factors into account.
But it is doubtful that the judiciary is the institution that is best situated to
undertake this inquiry. As the Constitutional Court emphasised in Treatment
Action Campaign, courts are not institutionally equipped to make the
wide-ranging factual and political enquiries necessary for determining what
the minimum core standards should be . . .
108
Of course, even if it is conceded that the minimum core should be aban-
doned for certain rights it might be argued that it should be retained for
rights where its content is apparently more straightforward. However, here
the problem is how to determine the threshold between core and non-core
needs. One possibility is to correlate the minimum core with that which is ne-
cessary for survival.
109
The minimum core of the right to housing is therefore
simply what is needed to ensure that destitute people do not perish. However,
drawing on the work of Amartya Sen, Katharine Young notes that people have
been known to survive on very little.
110
On this account, the minimum core
therefore threatens to become excessively minimal or under inclusive.
111
On
the other hand, if a more generous approach is takenlinking the minimum
core to notions of dignity, for example
112
the concept threatens to become
extensive or over inclusive in a manner that might undermine its intuitive
appeal, at least in the developing world where resources are scarce. It is not
106 Ferraz, supra n 99.
107 Bilchitz, supra n 87 at 224.
108 Supra n 55 at para 37.
109 See generally Bilchitz, supra n 87; and Fredman, supra n 11 at 86.
110 The Minimum Core of Economic and Social Rights: A Concept in Search of Content (2008)
33 Yale Journal of International Law113 at 131.
111 Liebenberg, Poverty and Fundamental Rights: The Justification and Enforcement of
Socio-Economic Rights (Review) (2007) 124 South African LawJournal 882 at 887.
112 InTreatment Action Campaign, supra n 55 at para 28, the amicus argued that no one should be
condemned to a life below the level of dignified human existence. For further discussion of
this issue, see Dixon, supra n 28.
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clear that we should look to courts in the first place to resolve these
disagreements.
However, none of this should be taken to mean that a court tasked with
enforcing social rights should not be responsive to needs that are particularly
urgent. The question is how this might be achieved without the level of judicial
prescription regarding the content of social rights that appears to be inherent
in the concept of the minimum core.
5. Giving Structure to Accountability
The issue for the remainder of this article is therefore how to develop the rea-
sonableness standard without compromising its democratic appeal. The
starting point for this discussion is the observation that the intensity with
which the reasonableness standard has been applied by the South African
Constitutional Court has varied significantly. Moreover, it has done so in a
manner that appears to be neither predictable nor principled. It is difficult to
reconcile the proportionality standard applied in Khosa with the excessively
deferent standard applied in Mazibuko. The article therefore recommends
greater predictability in the intensity with which the reasonableness standard
is applied, thereby meeting the objection that reasonableness is inherently
vague and unpredictable. It should be emphasised that it is not my view that
the standard applied in social rights adjudication should generally be search-
ing or invariably be set at the level of proportionality.
113
It seems ill advised to
adopt an approach whereby every welfare allocation is potentially subject to
close judicial scrutiny. The standard of review in social rights cases should gen-
erally be set at a relatively deferent level. However, the reasonableness standard
should also be structured by principles that are indicative of the types of cir-
cumstances that should be of particular concern to courts. Where one or
more of these principles is implicated in a case that should act as a trigger for
a more searching inquiry on the part of the court.
What principles then should determine the intensity with which the rea-
sonableness standard is applied? At this point, it is necessary to draw a distinc-
tion between principles of deference that apply in the adjudication of all
rights, and principles that are specific to particular rights. As far as deference
is concerned, there has been considerable discussion of this issue in UK public
law in recent years. While there is no clear consensus, a prevalent view is
that courts need to take various principles into account, although there is no
magic formula to determine their precise interaction in a given case. Aileen
Kavanagh, for example, suggests that the following factors should be weighed
113 For a contrary view, see Fredman, supra n 3.
246 HRLR 12 (2012), 221^253

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by the courts: expertise, competence and democratic legitimacy.
114
For Jeff
King, the principles that should be considered are polycentricity, expertise,
flexibility and democratic legitimacy.
115
However, it is worth noting that some
commentators reject certain of these factors
116
while others reject the need
for a distinct concept of deference altogether.
117
It is not my intention to contribute to the extensive literature on this issue.
Instead, my interest lies in the observation that these general principles of def-
erence interact with principles specific to particular human rights. For ex-
ample, in the area of freedom of expression it is well established that political
speech is accorded a high level of protection.
118
This principle may interact
with more general principles of deference in determining the courts willing-
ness to intervene in a particular case. Again there is no magic formula to deter-
mine the interaction between the principles specific to the right or between
these principles and the general principles of deference. In all likelihood a par-
ticular principle, or set of principles, is likely to be more prominent in a given
case and determine the intensity of the standard of review applied by the
courts. As for the principles that can be identified with social rights, the follow-
ing non-exhaustive list is proposed. Far more could, of course, be said about
each of these principles. Indeed, it is possible that each could form the basis of
an article in its own right. Within the scope of this article, my objective is
simply to provide an overview of the issues that each of the principles entails.
A. The Position of the Claimant in Society
This principle concerns whether the claimant occupies a disadvantaged pos-
ition in society and is centrally concerned with equality. If the claimant is mar-
ginaliseddue to poverty, stereotyping, a lack of political representation, or
some other factorthe courts should be concerned to establish that he or
she has not been overlooked or neglected by the political process. The principle
therefore embodies a procedural commitment to equality in the sense of creat-
ing the procedural means to free up the process of representation, and make
sure that all are in fact accorded equal regard and respect.
119
As discussed in
114 Deference or Defiance? The Limits of the Judicial Role in Constitutional Adjudication, in
Huscroft (ed.), Expounding the Constitution: Essays in Constitutional Theory (New York:
Cambridge University Press, 2008) 184.
115 King, Institutional Approaches to Judicial Restraint (2008) 28 Oxford Journal of Legal Studies
409.
116 Jowell rejects superior democratic legitimacy as a basis for deference. See Judicial Deference:
Civility, Servility or Institutional Capacity? (2003) Public Law 592.
117 Allan, Human Rights and Judicial Review: A Critique of Due Deference (2006) 65 Cambridge
LawJournal 671.
118 See, for example, Bowman v United Kingdom1998-I; 26 EHRR 1 at para 42.
119 Fredman, n 11 at 110. The classic account of this justification for judicial review is Ely,
Democracy and Distrust: A Theory of Judicial Review (Cambridge/London: Harvard University
Press, 1980).
Disagreement and the Constitutionalisation of Social Rights 247

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the first part of this article, this is a key rationale for according courts jurisdic-
tion to decide social rights claims in the first place. Courts should therefore
regard themselves as competent to closely scrutinise decisions where this prin-
ciple is implicated.
The principle also implicates concerns relating to substantive equality. Both
the Canadian Supreme Court and South African Constitutional Court have
adopted an overtly substantive approach towards the development of their
equality jurisprudence and both identify the position of the claimant in society
as a key factor. For both courts, government action that entrenches
pre-existing disadvantageor worsens the position of a disadvantaged individ-
ual or groupis unlikely to be upheld whereas measures that promote disad-
vantaged groups are likely to be endorsed.
120
This relates to the underlying
goal of substantive equality, which is to better the position of worse-off sectors
of society.
121
The Khosa judgment provides a useful illustration of both the procedural
and substantive dimensions of the principle under discussion. In finding that
permanent residents should be entitled to social security benefits, Mokgoro J
emphasised that foreign citizens are a minority in all countries and typically
have little political voice.
122
Citizenship should therefore be regarded as a
ground of discrimination, analogous to those enumerated in the Bill of
Rights.
123
Turning to more substantive concerns, Mokgoro J held that the
impact of excluding permanent residents from social security programmes
was severe and forced them into relationships of dependency.
124
The cumula-
tive result was that the legislation unfairly discriminated against permanent
residents.
Of course, none of this should be taken to mean that the mere fact of vulner-
ability or disadvantage should ensure success in a social rights claim. It is con-
ceivable that someone who is otherwise disadvantaged might not have a valid
claim in a given case. But for the reasons outlined courts should look more clo-
sely at cases where this principle is implicated.
B. The Urgency of the Claimants Needs
At first glance, this principle might not appear to be particularly useful. After
all, many social rights cases might involve a degree of urgency. However, the
120 Law v Canada [1999] 1 SCR 497 at para 88; and President of the Republic of South Africa v Hugo
1997 (4) SA 1 (CC).
121 See further Wesson, supra n 32.
122 Supra n 58 at para 71.
123 The Constitutional Court had previously recognised citizenship as an analogous ground of
discrimination in Larbi-Odam v Member of the Executive Council for Education (North-West
Province) 1998 (1) SA 745 (CC).
124 Supra n 58 at para 80.
248 HRLR 12 (2012), 221^253

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principle is intended to prompt more searching review in cases where the
claimants needs are particularly urgent. The principle will frequently intersect
with the principle discussed above in that those who occupy a disadvantaged
position in society will often also have urgent needs. The Grootboom case pro-
vides an obvious example. However, the principles are also logically distinct
in that it is possible to occupy a marginalised position in society without ur-
gently requiring state assistance and vice versa. It may be that the principle
relating to the position of the claimant in society is concerned with equality
whereas the principle under discussion expresses a notion of priority i.e. the
focus is not on the relative position of the claimant in society but rather the ob-
jective urgency of their needs.
125
Apart from Grootboom the principle also finds some expression in English
public law. In Rodgers
126
the claimant, who suffered from breast cancer, was
refused funding for the drug Herceptin which might have been effective in
her case. In the Court of Appeal Sir Anthony Clarke MR found that given that
this was a life or death decision for the claimant it was appropriate for the
court to subject the decision to refuse funding for the treatment . . . to rigorous
scrutiny.
127
Admittedly this was because the Swindon PCT had opted to make
Herceptin available without regard to cost. Had Herceptin been made available
subject to the availability of resources then the leading case of Ex p B
128
would have had application and it would have beenvery difficult, if not impos-
sible, to say that such a policy was irrational.
129
In effect, the principle that dis-
cretionary resource allocations are non-justiciable would have negated the
principle that life and death decisions should be subjected to rigorous scrutiny.
Of course, in jurisdictions where social rights are constitutionally protected
discretionary resource allocations need not be treated as non-justiciable
which means that courts are able to give greater weight to the principle ex-
pressed in Rodgers.
A further question is how this principle differs from the minimum core ap-
proach discussed above. In one sense, the principle under discussion might
seem to require a more expansive approach than the minimum core. A key ob-
jection to the minimum core is how to determine which set of needs should
comprise the minimum core in areas such as healthcare where there are mul-
tiple competing sets of urgent needs. The suggested approach would acknow-
ledge that urgent needs should generally invite a searching response from the
courts. However, in another sense the approach advocated would be more re-
strictive than the minimum core. This is because it would also acknowledge
125 Parfit, Equality or Priority?, in Clayton and Williams (eds), The Ideal of Equality (London:
MacMillan Press Ltd, 2000) 81.
126 R (on the application of Rodgers) v Swindon Primary Care Trust [2006] 1 WLR 2649.
127 Ibid. at para 56.
128 R v Cambridge Health Authority, Ex p B [1995] 2 All ER 129 (CA).
129 Ibid. at para 58.
Disagreement and the Constitutionalisation of Social Rights 249

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that the principle that urgent needs should prompt more searching scrutiny on
the part of the courts may be balanced against general principles of deference
such as polycentricity. Indeed, an awareness of polycentricity as a principle of
deference seems to be precisely what is absent from the Colombian and
Brazilian cases surveyed above. In those decisions, the courts appear to disre-
gard the budgetary implications of their decisions, reasoning that the dignity
of the individual is paramount. It is doubtful that such an approach is sustain-
able. In cases concerning urgent needs, such as Soobramoney, the response of
the courts needs to be shaped by an awareness of the urgency of the claimants
needs as well as the polycentric dimensions of the case.
There are other factors that distinguish the approach under discussion from
the minimum core. Proponents of the minimum core typically envisage
courts prescribing the content of the minimum level of provision that should
be made generally available. The recommended approach does not ask courts
to prescribe the substance of the states obligations in this way. Instead, it re-
quires that courts apply a heightened level of review in cases where the claim-
ants needs are especially urgent, subject to the proviso that there may be
countervailing principles of deference that counsel a more restrained ap-
proach. This is consistent with acollaborative approach towards the fulfilment
of social rights, which leaves the executive and legislative branches with dis-
cretion about how best to remedy the violation, thereby allowing the content
of the right to emerge through a dialogue between the different branches of
government.
130
A further distinction is that the minimum core is typically regarded as gen-
erating individual entitlements to a specified level of provision. This is the ap-
proach taken by the Brazilian courts in right to health litigation, where the
case law is characterised by individualised claims to curative treatment and a
high success rate for litigants. As discussed, this approach may well be increas-
ing health inequities in Brazil as the relatively privileged claimants who are
able to access the judiciary divert resources from less advantaged sectors of so-
ciety. The suggested approach, in contrast, does not require that social rights
be individualised in this manner. Where there is a group whose needs are par-
ticularly urgent the court may, as in Grootboom, order the state to formulate a
programme catering to the needs of such individuals, without specifying the
exact form of the programme. This is also consistent with a collaborative ap-
proach towards the fulfilment of social rights, which may be usefully aug-
mented through the use of supervisory jurisdiction.
131
130 Steinberg, Can Reasonableness Protect the Poor? A Review of South Africas Socio-economic
Rights Jurisprudence (2006) 123 South African LawJournal 264.
131 See Wesson, supra n 32.
250 HRLR 12 (2012), 221^253

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C. Intersections Between Social Rights and Other Rights
Social rights claims frequently intersect with alleged violations of other rights.
This is apparent from the experience of the HRA in the UK, where civil and
political rights such as the right not to be subjected to torture or inhuman or
degrading treatment or punishment,
132
the right to respect for private and
family life
133
and the prohibition on discrimination
134
have been used to lever-
age what are in part social rights claims.
135
It is submitted that such intersections should trigger heightened scrutiny on
the part of courts. The reason should be obvious: courts should be particularly
concerned in cases where there appear to be multiple rights violations. This
principle finds expression in the South African case of Khosa where the inter-
section between the right of access to social security and the right to equality
prompted the Constitutional Court to harden the reasonableness standard
into proportionality review. In Mazibuko, in contrast, the Court found that the
challenged policy did not raise equality concerns and that even if these were
present they did not amount to unfair discrimination. In reaching the latter
conclusion the Court applied a highly deferent standard of review.
136
This
underscores the key contention of the article, which is that the reasonableness
standard should be structured by principles so as to ensure greater predictabil-
ity and consistency in its application.
D. Retrogression
In General Comment 3 the CESCR states that the obligation to progressively
realise social rights entails that any deliberately retrogressive measures in
that regard would require the most careful consideration and would need to
be fully justified by reference to the totality of the rights provided for in the
Covenant and in the context of the full use of the maximum available
resources.
137
Discussion of retrogression might seem out of place in this article, given that
the focus is on the states positive obligations to promote and fulfil social
rights as opposed to its negative obligation to respect social rights. However, it
is by no means clear that the duty to respect social rights is synonymous
with the principle of non-retrogression. There is no doubt that the duty to re-
spect social rights is engaged when, for example, someone is unlawfully
evicted from their home.
138
But it is less clear that a reduction in welfare
132 Article 3. See Limbuela, supra n 30.
133 Article 8. See Anufrijeva v Southwark London Borough Council [2003] EWCA Civ 1406.
134 Article 14. See Ghaidan v Godin-Mendoza [2004] UKHL 30.
135 See further King United Kingdom, in Langford, supra n 47 at 276.
136 See further Wesson, supra n 37.
137 General Comment No 3, supra n 88 at para 9.
138 See the South African jurisprudence in this regard, discussed in Liebenberg, supra n 47 at 91.
Disagreement and the Constitutionalisation of Social Rights 251

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provision necessarily constitutes a violation of the obligation to respect social
rights. It may be that the states actions in this regard are better understood in
terms of the duty to promote and fulfil social rights, or as relating to the
duties to promote and fulfil and respect rights.
139
For these reasons, it seemed
prudent to include some discussion of retrogression within this article.
There is unfortunately not a great deal of case law on the duty of non-
retrogression. However, one well-known example emanates from Hungary
where the Hungarian Constitutional Court struck down as unconstitutional le-
gislation that converted a system of family allowances and maternity benefits
into a needs-based system.
140
The measures formed part of legislation intro-
duced under pressure from the International Monetary Fund and the decision
has consequently been celebrated by left-leaning commentators.
141
Despite
this, it is not clear that the judgment clarifies much about the duty of
non-retrogression. As Langford notes, the decision turns primarily upon the
concepts of legal certainty and property, as opposed to the right to social secur-
ity.
142
This leads Langford to criticise the Court for seeking to protect social
rights in a backhanded way through implied rights and property rights.
143
The Court was also concerned with the procedure whereby the reforms were
introduced and in particular the absence of a transitional period. However,
the Courts procedural concerns appear not to form part of a developed concept
of non-retrogression in the context of social rights.
Returning to General Comment 3, the gist of the CESCRs comments would
appear to be that deliberately retrogressive steps impose a heightened burden
of accountability on the state. However, it should be noted that this is not tan-
tamount to courts prescribing the extent of the states welfare obligations. The
principle instead creates a presumption against erosion of existing levels of
welfare provision. There is both a procedural and substantive dimension to
the states obligations in these circumstances. The reference to most careful
consideration implies a decision-making process: the state should fully con-
sider the impact of its policies.
144
From a substantive point of view the state
must point to an objective that justifies the measures adopted.
This principle may, of course, be offset by principles of deference. For
instance, as far as substantive justifications for retrogressive measures are
concerned, courts are highly unlikely to second-guess government policy
139 For discussion of these issues, see Langford and King, supra n 89 at 484.
140 Decision 43/1995, 30 June 1995.
141 For example, see OConnell, The Death of Socio-Economic Rights (2011) 74 Modern Law
Review 553 footnote 136. For a more critical view, see Sajo, How the Rule of Law Killed
HungarianWelfare Reform (1996) East European Constitutional Review 31.
142 Langford, supra n 47 at 256.
143 Ibid. at 259.
144 Nolan, Is the governments austerity programme breaking human rights law? 1 March
2011, available at: http://www.opendemocracy.net/ourkingdom/aoife-nolan/is-governments-
austerity-programme-breaking-human-rights-law [last accessed 28 March 2012].
252 HRLR 12 (2012), 221^253

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regarding the pace and scale of spending cuts necessitated by a substantial
budget deficit. It may therefore be more profitable to focus on the states proced-
ural obligations in these circumstances. That said, it is also possible to envisage
cases in which the principle of non-retrogression is in fact strengthened
through interaction with other principles pertaining to social rights, such as
the principles regarding urgency and the position of the claimant in society.
One approach might be that the greater the extent to which these principles
are implicated by the retrogressive measure, the more searching the Courts
scrutiny should become. A degree of flexibility is needed as the duty of
non-retrogression should not constitute a rigid ratchet mechanism that pre-
cludes all welfare reform. Of the four principles discussed in this section, the
principle of non-retrogression is perhaps most urgently in need of further
examination.
6. Conclusion
The central argument advanced in this article is that disagreements regarding
the nature and extent of the states welfare obligations should be played out pri-
marily through the political process, subject to a structured form of supervi-
sion on the part of the judiciary. In particular, it has been suggested that calls
for courts to give more detailed content to social rights are ill-conceived for
both democratic and institutional reasons. The article has therefore sought to
develop the reasonableness approach towards constitutional social rights
while also maintaining arestrained and focused
145
role for the courts.
This argument is unlikely to satisfy commentators who view constitutional
social rights as ideally mandating courts to institute far-reaching social
change. However, that level of expectation was perhaps always unrealistic:
courts are ill placed to deliver such change in the absence of some level of
pre-existing political momentum. As Aileen Kavanagh has remarked in con-
text of national security, courts should be held to standards appropriate to
their institutional capacity.
146
Given the contested nature of distributive just-
ice, the article has argued that the role of the courts should be to deepen ac-
countability on the part of the state while staging interventions in the type of
circumstances where this is necessary and appropriate. That might seem a
modest role but it is one that courts are well placed to perform and which is
capable of delivering benefits that should not be underestimatednot least
for the individuals concerned.
145 Treatment Action Campaign, supra n 55 at para 38.
146 Judging the Judges under the Human Rights Act: Deference, Disillusionment and the War on
Terror (2009) Public Law 287.
Disagreement and the Constitutionalisation of Social Rights 253

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