edoc

Thickening the Rule of Law in Transition: The Constitutional Entrenchment of Economic and Social Rights in South Africa

Schmid, Evelyne. (2012) Thickening the Rule of Law in Transition: The Constitutional Entrenchment of Economic and Social Rights in South Africa. In: International Law in Domestic Courts: Rule of Law Reform in Post-Conflict States. Cambridge, pp. 59-81.

[img]
Preview
PDF - Published Version
Available under License CC BY-NC-SA (Attribution-NonCommercial-ShareAlike).

427Kb

Official URL: http://edoc.unibas.ch/50321/

Downloads: Statistics Overview

Abstract

This chapter examines the ability of the South African Constitutional Court to apply economic and social rights (ESR) and whether the constitutionalization of ESR represents a mechanism capable of entrenching a substantive or ‘thick’ conception of the rule of law. The chapter considers ‘transformative constitutionalism’ and its ability to fulfil the ambitions of setting out to establish a society based on social justice and fundamental human rights. The South African jurisprudence after the constitutionalization of human rights, in particular ESR, has been praised by the international community. Nevertheless, the central tenets of the chapter are two cautionary findings. First, the analysis cautions against using constitutional change alone to enhance the rule of law after conflict or oppressive rule. Although constitutional adjudication in South Africa has had positive outcomes, modifying the place accorded to international law in the domestic legal system is largely insufficient for the realization of ESR and the ‘thick’ conception of the rule of law envisioned by the drafters of the 1996 Constitution. Second, the chapter finds that a domestic belief in the relevance of international and national legal norms was decisive in the South African experience. The constitutional empowerment of domestic courts to apply international legal principles would not, by itself, explain the practice of national courts insisting on the implementation of rights recognized in international law. Moreover, a number of unique factors related to the actors and process leading to the constitutional transformation in South Africa contribute to explain the remarkable transition towards an international law-friendly constitution. While the empowerment of domestic courts in South Africa provides lessons for other states, those lessons are primarily ones regarding limitations, complexities, and context-specific issues that arise in the empowerment of domestic courts to apply international legal principles in situations of transition.
Faculties and Departments:02 Faculty of Law > Departement Rechtswissenschaften > Fachbereich Öffentliches Recht > Ordinariat Staats- und Verwaltungsrecht (Schefer)
UniBasel Contributors:Schmid, Evelyne
Item Type:Book Section, refereed
Book Section Subtype:Book Chapter
Publisher:Intersentia
ISBN:978-1-78068-041-5
Series Name:Series on transitional justice
Issue Number:9
Note:Publication type according to Uni Basel Research Database: Book item
Language:English
Last Modified:11 May 2017 09:40
Deposited On:11 May 2017 08:27

Repository Staff Only: item control page