Overview

This book addresses the pressing issue of severe poverty and inequality, and questions why violations of socio-economic rights are treated with less urgency than violations of civil and political rights, such as the right to freedom of speech or to vote? Socio-economic rights have been widely regarded as aspirational goals, rhetorically useful, but having few practical implications for government policy and the distribution of resources within a polity. It is not therefore surprising that socio-economic rights have been systematically neglected in the world today, with millions still lacking access to even basic shelter, food or health-care. This book seeks to provide a sustained argument for placing renewed emphasis upon socio-economic rights in the fight against desperate poverty. It utilizes a combination of political philosophy, constitutional law, and public policy in its focus on the right to food, to housing, and to health-care. Part I involves the development of a philosophical theory of rights that provides a common normative foundation for both civil and political rights and socio-economic rights. This theory involves developing an understanding of value that recognizes individuals have fundamental interests of differing levels of urgency. It also involves drawing an important distinction between conditional rights that flow purely from a normative focus on the equal importance of individuals and unconditional rights that involve competing normative and pragmatic considerations. A general theory of judicial review is also put forward that provides a justification for judicial involvement in the enforcement of socio-economic rights. Part II then considers the implications of this general philosophical theory for the interpretation and enforcement of socio-economic rights in law. The focus of this more applied discussion is upon South Africa, where entrenched, directly justiciable socio-economic rights are expressly protected in the Constitution. The 'reasonableness' interpretive approach adopted by South Africa's Constitutional Court is critiqued and a modified version of the 'minimum' core approach proposed as the leading alternative. The latter approach requires priority to be given to the worst off in society through placing a heavy burden of justification on any society that fails to meet the minimal interests of individuals. It also requires concrete steps to be taken towards realizing a higher level of provision that guarantees individuals the necessary conditions for realizing a wide range of purposes. This approach is also shown to have important policy implications both for developing and developed countries and can, it is hoped, assist in creating an urgency and commitment towards eradicating extreme poverty.

Full Product Details

Author:   David Bilchitz (Part-time Lecturer, University of the Witwatersrand; Full-time Employee of Ross Kriel Attorneys, specialising in the law relating to the public sector)
Publisher:   Oxford University Press
Imprint:   Oxford University Press
Dimensions:   Width: 16.10cm , Height: 2.10cm , Length: 24.10cm
Weight:   0.593kg
ISBN:  

9780199204915

ISBN 10:   0199204918
Pages:   298
Publication Date:   22 February 2007
Audience:   Adult education ,  Professional and scholarly ,  Further / Higher Education ,  Professional & Vocational
Format:   Hardback
Publisher's Status:   Active
Availability:   Manufactured on demand  
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Table of Contents

Preface Foreword Introduction 1: Towards a Thin Theory of the Good Introduction Value and Point of View Nussbaum and the Notion of a Human Life Rawls and the Concept of the Person Drawing Fact and Value Together: Experience and Purpose In Defence of the Proposed Theory of Value Judgments of Priority Conclusion 2: The Justification of Fundamental Rights Introduction The Presuppositions of Agency and Fundamental Rights Nagel's Strategy: Impersonal and Personal Reasons Political Communities and the Justification of Fundamental Rights Objections Conclusion 3: Determining Our Unconditional Obligations Introduction Unanswered Questions About the Content of Rights Conditional and Unconditional Rights Translating Conditional Rights into Unconditional Rights The Assignment of Duties The Overall Decision Framework Conclusion 4: Justifying the Judicial Review of Fundamental Rights Introduction Theories of Judicial Review Disagreement, Rights, and Judicial Review A Thin Rights-Based Theory of Judicial Review Reaching Optimal Decisions Concerning Fundamental Rights: The Judiciary or the Legislature? Socio-Economic Rights and Judicial Review Conclusion 5: Judicial Review in Practice: The Reasonableness Approach and its Shortcomings Introduction Constitutional Interpretation in South Africa Grootboom: Reasonableness and the Minimum Core Treatment Action Campaign: Reducing Rights to Reasonableness An Alternative Reading of the Jurisprudence? Khosa: Reasonableness and the Confusion of Scope and Content Conclusion 6: Political Philosophy in Action: Developing the Minimum Core Approach to Socio-Economic Rights Introduction Linking Political Philosophy and Legal Doctrine The Case for a Minimum Core Approach Objections to the Minimum Core Approach The Notion of Priority and the Minimum Core Resources, Impossibility, and Rights The Availability of Resources Conclusion Conclusion: Implications for Policy in South Africa and Beyond The Right to Food in the United States, India, and South Africa The Right to Adequate Housing in the United Kingdom, India, and South Africa Conclusion Bibliography Index

Reviews

...the most sustained examination to date concerning the justification for the inclusion of these [social and economic] rights..Bilchitz follows in the footsteps of the pioneering work of Sandra Liebenberg. Mail and Guardian

David Bilchitz has written an admirable book of breathtaking scope Jeff A. King, Public Law This book will undoubtedly stimulate robust debate on the theoretical justifications for socio-economic rights... Sandra Liebenberg, South African Law Journal ...the most sustained examination to date concerning the justification for the inclusion of these [social and economic] rights..Bilchitz follows in the footsteps of the pioneering work of Sandra Liebenberg. Mail and Guardian

Author Information

David Bilchitz graduated cum laude from the University of the Witwatersrand, Johannesburg in 1997 with a BA (Hons) in Philosophy and in 1999 with a law degree (LLB). In 2000, he worked as law clerk to the current Chief Justice of South Africa, Pius Langa when the famous Grootboom case was decided. He graduated from St. John's College, University of Cambridge with an Mphil degree in Philosophy in 2001 and a PhD degree in 2004 with a thesis that combined political philosophy and constitutional law. He currently works for Ross Kriel Attorneys, a law firm that together with its sister organisation, Ashira Consulting, specialises in the law relating to the public sector. He is also a part-time lecturer in jurisprudence at the University of the Witwatersrand

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