The decision of the South African Constitutional Court in South Africa v. Grootboom is one of the most important examples of the judicial enforcement of socioeconomic rights known to comparative constitutional lawyers. South African scholars generally agree that the approach taken by the South African Court in Grootboom was overly cautious but disagree as to how much stronger the Court's approach could have been without overtaxing judicial competence and legitimacy. This article seeks to provide theoretical guidance in answering that question—by developing a theory of “constitutional dialogue.” Like other theories of cooperative constitutionalism, this theory suggests that judicial review will need to be weakened, compared to traditional models, before it can be counted fully legitimate—in general, and in the context of the enforcement of the positive dimension of socioeconomic rights in particular. At the same time, it suggests that, in enforcing rights, courts have a much greater capacity, even a responsibility, to play an active role in countering “blind spots” and “burdens of inertia” in the political process than is envisaged in other theories. In the enforcement of socioeconomic rights, courts should not discount the value of a strong approach to the definition of states' obligations, or the use of strong remedies; rather, they should weigh the benefits of weakened rights versus remedies according to the circumstances of a particular country and case.
Among cases involving the judicial enforcement of socioeconomic rights, the decision of the South African Constitutional Court in Government of the Republic of South Africa v. Grootboom1 is, perhaps, the one best known to comparative constitutional lawyers. At the time of the decision, many scholars praised the Court's decision for its pragmatism and sensitivity to democracy. The decision was seen to provide important evidence as to the possibility of judicial enforcement of socioeconomic or second-generation rights2 in a way that was both appropriately transformative and yet sensitive to concerns about judicial competence and responsiveness in this area.3 In the years following Grootboom, however, it has become apparent that the Court's decision in fact did little to change the status quo in South Africa with regard to a right to basic shelter.4 Constitutional scholars now agree generally that the Court's intervention was—to an important degree—too limited or “weak,” in the sense of Mark Tushnet's taxonomy of weak-form judicial review.5 However, there has been vigorous ongoing debate as to how much stronger the Court's approach could have been, given potential limits on judicial competence and legitimacy.6 In particular, opinions vary on whether the Court could legitimately have adopted a broader, more concrete definition of the nature of individual socioeconomic rights under the South African Constitution (strong rights); pursued a more time-sensitive and coercive form of relief (strong remedies), or adopted both strong rights and strong remedies.7
The purpose of this article is to provide an answer to these questions by examining, first, why it was desirable for the Constitutional Court of South Africa to be involved in a case like Grootboom, and, second, why there might be concerns about the limits of judicial competence or legitimacy in this context. In doing so, the article argues for a commitment to constitutional “dialogue” as the most desirable model of cooperation between courts and legislatures in the enforcement of socioeconomic rights. In common with other theories of cooperative constitutionalism, dialogue theory envisages limits to both judicial competence and responsiveness in the process of constitutional rights adjudication, which means that courts should stop short of the pure strong-form approach to judicial enforcement of socioeconomic rights advocated by some scholars in South Africa.8 However, in a dialogue model, courts also have a much greater capacity and responsibility to counter legislative blockages to the realization of constitutional rights than is advocated by other models.
In general, dialogue theory argues for an intermediate approach to the judicial enforcement of constitutional rights, which allows courts both to define rights in relatively broad terms and to adopt strong remedies, provided they defer to legislative sequels that evidence clear and considered disagreement with their rulings. However, in the specific context of a case where the positive dimension to socioeconomic rights is concerned, dialogue theory favors a weaker approach, requiring courts to adopt either weak rights or weak remedies, depending on the circumstances of the particular country and case. In Grootboom in particular, it favors a weak rights solution.
The idea of a dialogue between courts and legislatures regarding constitutional norms has received extensive academic attention over the last decade in the United States and Canada.9 It has also gained broader attention, in recent years, in the context of new Commonwealth bills of rights.10 However, it has not generally been applied directly to socioeconomic rights.11 Furthermore, the language of dialogue is often used to describe very different theories of cooperative constitutionalism, each embracing a different understanding of the appropriate scope of the judicial and legislative roles.12 One aim of this article, therefore, is to provide a more exact account of dialogue, focusing on the potential for a constitutional judiciary to enhance the overall inclusiveness and responsiveness of a constitutional democracy, chiefly by neutralizing specific obstacles in the political process.
The article is divided into six sections. Section 2 sets out the background to Grootboom and its application by the Court in subsequent jurisprudence. This is the starting point for a discussion of the appropriate role of courts in the interpretation and enforcement of constitutional guarantees of socioeconomic rights and, specifically, the rights of access to housing and to food, water, social assistance, and health care in sections 26 and 27 of the South African Constitution. Section 3 considers why judicial enforcement might be desirable in this context and suggests that in a dialogic understanding, as compared with other ways of understanding cooperative constitutionalism, the argument for judicial review derives from courts' ability to help counter failures of inclusiveness and responsiveness in the political process—termed herein as “blind spots” and “burdens of inertia.” Section 4, in turn, highlights the comparable risk of reverse burdens of inertia that can arise when courts assume too strong a role in enforcing constitutional rights. It suggests that this risk implies the need both for formal procedures of legislative override and for more informal commitments to judicial restraint in the interpretation and enforcement of a constitutional bill of rights. Section 5 examines the options for judicial self-restraint available to courts under an existing bill of rights—or the choice courts face among intermediate and weak approaches to the definition and enforcement of constitutional rights guarantees. It proposes that in cases involving the negative dimension of socioeconomic rights, an intermediate approach will be sufficient to prevent significant reverse burdens of inertia, whereas in a case such as Grootboom, involving the positive dimension to socio-economic rights, some further weakening of the judicial role will be required, through the adoption of either a weak rights or weak remedies approach. While acknowledging the difficult, context-specific nature of this tradeoff, section 5 concludes that an approach based on weak rights rather than weak remedies is best suited to the present South African context. Finally, section 6 takes up concerns about the endorsement of weak rights raised by those who would use an international human rights understanding of the core content of socioeconomic rights guarantees to encourage better rights realization in South Africa. This section argues that these concerns are largely misplaced, given the compatibility between a weak rights approach and reliance on a truly international rather than normative-conceptual approach to the minimum core.
Grootboom, Minister of Health v. Treatment Action Campaign, and the approach of the South African Constitutional Court
The sequence of events leading to the Grootboom decision began in November 1998, when Irene Grootboom and nine hundred others left their informal settlements in the Wallacedene area, near Cape Town, because of the increasingly intolerable living conditions there and moved to an area of private land, earmarked for low-cost housing, known as New Rust. A month later, the owner of New Rust applied for, and was granted, an ejection order against Grootboom and her neighbors. This order was enforced in May 1999 by the Oostenberg municipality; in the course of the eviction, the makeshift housing and possessions of Grootboom and many other plaintiffs were destroyed. As a result, they returned to Wallacedene without any kind of housing and began living on the Wallacedene sports field under plastic sheeting. As winter approached, this became increasingly untenable, and representatives of Grootboom wrote to the Cape municipality demanding temporary accommodation for those who were homeless at Wallacedene. This request was made in accordance with the government's obligation in South Africa to take “reasonable measures progressively to realize” the right of access to housing, pursuant to section 26(2) of the Constitution13 and its obligation to ensure that children have access to basic shelter,14 pursuant to section 28(1)(c). When no satisfactory reply was received from the municipality, proceedings were launched in the Cape High Court by Grootboom against both local and provincial authorities, on behalf of herself and the nine hundred others.15
In the High Court, Judge Dennis Davis rejected the plaintiffs' section 26 argument on the ground that section 26(2) did not confer an individually enforceable minimum core entitlement even to temporary shelter.16 However, Davis held that section 28(1)(c) did impose such an obligation where parents were unable to provide a child with basic shelter, and that this implied an obligation to provide, at a bare minimum, “tents, portable latrines and a regular supply of water (albeit transported).”17 Davis granted declaratory relief to this effect. He also ordered the respondents to report to the High Court within three months on implementation of the order, and, pending final resolution of the proceedings, to provide temporary accommodation to the children and to one parent of each child.18
On appeal, the Constitutional Court upheld Davis's finding that section 26(2) did not confer a minimum core right to basic shelter on any individual, although it held that similar reasoning applied in the context of section 28(1)(c).19 The Court ruled that the notion of the minimum core, which developed in the context of the International Covenant on Economic, Social and Cultural Rights (ICESCR)—requiring states immediately provide certain “minimum essential levels” of each of the rights protected by the Covenant—should be rejected.20 The Court suggested that, were it to adopt such an approach, substantial difficulties would be encountered in determining whether or not the core should be defined generally or with reference to the needs of specific groups. Again, similar difficulties would arise in articulating the content of the minimum core in light of the diversity of citizens' needs.21 Nevertheless, when applying a test of reasonableness, the Court held that the state was in breach of section 26(2), having failed to include in its housing plan “reasonable measures … to provide for relief for people who have no access to land, no roof over their heads, and who are living in intolerable conditions or crisis situations.”22 It found that a reasonable housing plan would have addressed short-, medium-, and long-term needs and that a plan excluding a significant segment of society could not be judged reasonable under section 26(2).23 It then granted declaratory relief in favor of Grootboom and the other constitutional plaintiffs but declined to make permanent the interim injunction issued by the High Court,24 or to indicate what would constitute a reasonable time frame for implementing such measures.25 As Mark Tushnet has suggested, the Court's decision was thus weak (or limited) both in a substantive and a remedial sense: that is, along the axes of breadth, coerciveness, and remedial timing.26 This is to be compared with the much stronger form of review employed by Judge Davis, who was willing to specify a broader notion of the state's obligations under section 28(1)(c) and to impose injunctive as well as declaratory relief, with a clear deadline for compliance.
Two years after Grootboom, in Minister of Health v. Treatment Action Campaign (TAC),27 the Constitutional Court again had to decide how best to interpret and enforce the positive dimension of the socioeconomic rights guarantees contained in sections 26(2) and 27(2) of the Constitution. This time, the claim was that the failure to provide access outside of certain designated test sites to an antiretroviral medication (nevirapine), which had been shown to decrease substantially the risk of mother-to-child transmission (MTCT) of HIV, was a breach of the right to access health care services protected by section 27(1) of the Constitution.
In the High Court, Judge Botha approached the question in terms of the Grootboom framework, namely, by asking whether the refusal to provide access outside the pilot sites could be considered reasonable.28 He found that it was not reasonable, given that there was clear residual capacity in many public hospitals for the provision of nevirapine, and that the government had not advanced a compelling reason for denying those hospitals the flexibility to do so in appropriate cases.29 Judge Botha was also prepared to issue a stronger remedy than the Constitutional Court in Grootboom and to grant both declaratory and mandatory injunctive relief requiring the national minister of health and provincial members of the Executive Council for Health to make nevirapine available to pregnant women and infants treated in the public health system, wherever it was medically indicated and appropriate testing and counseling could be provided. He thus ordered the respondents to develop a comprehensive national plan aimed at preventing MTCT of HIV and ordered the respondents to report to the court within three months on steps they had taken to develop and implement that plan.30
On appeal, the Constitutional Court endorsed Judge Botha's reasonableness-based approach on the grounds that sections 26 and 27 were related and must be read together31 and that the Constitution contemplates a “restrained and focused role for courts” in socioeconomic rights enforcement.32 Also, like Botha, the Constitutional Court held that the government's arguments were insufficient to support a finding that the failure to provide the treatment was reasonable.33 Identifying HIV/AIDS as the single greatest threat to public health in South Africa,34 the Court also went on to grant a stronger remedy than it had in Grootboom, affirming the government's obligation to remove restrictions on the provision of nevirapine in situations where the capacity already existed to administer the drug and it was medically indicated.35 The Court declined, however, to adopt the second aspect of Botha's remedy, preferring to prescribe a purely declaratory remedy, without a deadline, with regard to the government's general obligation to develop and implement a plan for the full rollout of nevirapine.36
Thus, the Court largely followed the approach it had taken in Grootboom, first, in endorsing a narrow, reasonableness-based approach to defining the right of access to health care services in section 27(2) over a broader minimum core approach and, second, in preferring declaratory relief over broad forms of injunctive, time-specific relief. In subsequent cases, the Court has also evinced this preference for weak rights and weak remedies in the enforcement of rights of access of this kind.37
Why should courts enforce socioeconomic rights?
In evaluating the Court's approach in Grootboom or TAC, it is useful to begin by asking, in the first place, why the Constitutional Court should be involved in interpreting and enforcing provisions such as sections 26 and 27.
Some scholars might suggest an originalist response to this question—namely, that the framers of the South African Constitution clearly envisaged such a role for the Court in the drafting of sections 26 and 27.38 However, there seems to have been little agreement or clear understanding on the part of the drafters in this context—regarding either the division of interpretive and enforcement authority among the courts, legislature, and executive, under sections 26 and 27, or the content to be ascribed to these provisions in particular concrete cases.39 Thus, even if one accepts an originalist starting point, there remains a need for some account of the role of the South African courts that is grounded in constitutional theory as well as history.40
For cooperative constitutionalists, any theoretical account in this context must begin by acknowledging serious indeterminacy in provisions such as sections 26 and 27 and, thus, accept that the content of and priority to be given to rights-based claims made under these sections are bound to be the subject of disagreement among South Africans.41 For example, regarding the right to housing, some South Africans obviously favor an approach that gives priority to market-driven solutions over the provision of public housing,42 while others feel that governments have a central role to play.43 In other words, some take the right of access to housing as imposing an obligation on governments to create the conditions necessary for meaningful access to the private housing market, whereas others believe that it imposes an obligation on government to provide public housing directly. Similarly, some South Africans believe that access to antiretrovirals should be seen as a categorical right of all South Africans living with HIV, regardless of their capacity to pay or the degree to which they are likely to benefit,44 whereas others think that access to this treatment falls outside the right to public health care, given the likely costs of providing such access.45
South Africans are also likely to disagree about the priority to be given to particular socioeconomic rights claims, depending on how they view the relationship between these rights and various first-generation rights. Some South Africans, for example, clearly regard claims based on those rights that are necessary to ensure survival, or protect the individual's right to life, as the most pressing ones under sections 26(2) and 27(2).46 However, it would be equally plausible to emphasize the relationship between those sections and other first-generation rights guarantees in the Constitution, such as the right to dignity contained in section 10. The latter could also be understood as guaranteeing either a certain physical or material baseline, necessary for a person's life to count as fully human,47 or as a relationship between persons based on respect for and recognition of human subjectivity (dignity in the Kantian sense).48 Another first-generation right to which sections 26 and 27 may be related is the right to equality contained in section 9(2) of the Constitution.49 Further, a focus on any of these rights may produce significant disagreement among South Africans about what counts as having priority as core versus non-core entitlements under sections 26(2) and 27(2).
Disagreement about the scope of core entitlements will not necessarily occur in every case. Even among those who prioritize different first-generation rights, an “overlapping consensus”50 would likely emerge, in a case such as Grootboom,regarding the scope of a minimum core right to temporary access to land and to basic building materials or tent-like shelter. Basic shelter is essential to both human survival and a baseline of human existence; it is similarly essential to notions of dignity, which require the state to respond to inherently reasonable demands for state assistance, and to notions of equality, which require the state to improve the condition of the worst-off in society. However, there is likely to be much more significant disagreement among South Africans in cases involving more permanent forms of housing, because concerns about both dignity in the Kantian sense and substantive equality would tend to favor a more restrictive notion of the state's core priorities, at least until basic shelter had been provided to all South Africans.
Similarly, there are likely to be divergent notions in South Africa about what constitutes the core of the right of access to health care services. How that core is defined will depend on whether South Africans give priority to the right to life (that is, the need to respond to urgent and concrete threats to life); to urgent demands for palliative care and treatment for debilitating and painful disease (dignity as a baseline); to demands that count as inherently reasonable from a cost-benefit point of view, thus entailing the refusal of that which might tend to demean citizens' sense of self-worth (dignity in the Kantian sense);51 or to the need to respond to claims made on behalf of the poorest and most neglected South Africans from a health care point of view (equality). In a case such as TAC, for example, a focus on dignity in the Kantian sense might well favor treating access to nevirapine as within the minimum core right of access to health care services, whereas focusing on dignity as a baseline would reject giving priority to such access, at least over and above access to life-improving antiretrovirals for those already suffering from full-blown AIDS. Conversely, in the context of the current debates in South Africa about broader access to antiretrovirals, a focus on dignity in the baseline sense, or on rights to life and equality, might favor treating such access as within the scope of the state's minimum core obligations, whereas a focus on dignity in the Kantian sense would imply that such a right of general access was far more contingent, varying according to the costs to the state associated with the treatment's provision.
It is quite possible, as an abstract theoretical matter, that there are answers to these questions that are both morally and constitutionally “right.”52 However, as free and equal citizens, with extremely different life experiences and perspectives, it is also both likely and reasonable that South Africans should reach a variety of different answers to these questions.53 There is, thus, little chance of resolving these questions by reference either to collective South African understandings of the concrete content of sections 26 and 27, or agreed objective standards of constitutional or social morality in South Africa. Rather, rights-based controversies must be resolved in South Africa by more squarely democratic deliberative processes that attempt to give effect to constitutional understandings in the broader “constitutional culture.”54 And, as Jeremy Waldron has argued, this, in turn, implies that there will be little basis for truly “countermajoritarian” judicial enforcement of rights guarantees,55 since such enforcement would clearly fail to respect principles of equality among citizens in processes of democratic constitutional deliberation.56
This does not mean, however, that courts should have little or no role in the interpretation and enforcement of socioeconomic rights guarantees such as we find in sections 26 and 27. In cooperative constitutional understandings, majoritarian political processes are often subject to serious blockages, such that very strong judicial deference to the legislature (super-weak judicial review)—or pure legislative supremacy—will tend to produce results that fall far short of a fully inclusive and responsive constitutional ideal.57 In a dialogic understanding, the legislative process will be subject to a series of blockages arising from both the potential for blind spots and burdens of inertia in the process of lawmaking and implementation.
Blind spots can arise in the legislative process for several reasons. First, legislatures may fail to recognize that a law could be applied in a way that infringes rights; this failure could come about because of time pressures on legislative deliberations or because of other limitations on legislative foresight (blind spots of application).58 Second, legislators may fail to anticipate the impact of laws on rights because they do not appreciate, adequately, the perspective of rights claimants with very different life experiences and viewpoints (blind spots of perspective).59 And, third, legislators who are focused on a particular legislative objective, and who have limited legal experience, may be ill-equipped to perceive ways in which a rights-based claim might more fully be accommodated, without undue cost to the relevant legislative objective (blind spots of accommodation).
Legislative processes may also be subject to burdens of inertia in achieving rights-based protection because legislation is a time-consuming process and must operate within the capacity constraints of a given legislative session.60 In these circumstances, a legislature may fail to address rights-based claims simply because competing legislative priorities appear electorally more pressing or salient (priority-driven burdens of inertia). Alternatively, inertia may come about because an issue divides a political party in such a that the benefits of pursuing a more responsive legislative outcome are outweighed by the costs involved for party integrity (coalition-driven inertia).61 Finally, where the realization of a rights-based claim requires sustained and complex forms of administrative action, delay and inertia in the process of legislative oversight may combine with inertia within the executive or administrative branch to produce compound burdens of inertia.
On the facts of Grootboom and TAC, for example, one could argue that the South African parliament was subject to clear blind spots of perspective—in responding to the rights-based claims of (a) South Africans who were completely displaced and homeless (as opposed simply to living, as many do, in substandard informal housing) and (b) women who were poor, pregnant, HIV-positive, and living in rural areas outside the designated pilot sites (and thus had no means of obtaining access to antiretrovirals). Further, one could argue that national and provincial political processes were also subject to serious inertia in these contexts prior to the Constitutional Court's intervention. The South African government had pledged to build one million homes by 1999 as part of its plan for the progressive realization of the right of access to housing; however, by 1997 it had built only 250,000 homes,62 and by 1999, only 700,000.63 Likewise, the government had first investigated the possibility of providing access to antiretrovirals in 1998, but it had not adopted even a limited pilot program for pregnant women until 2001–2002.64
Such omissions and delays—that are not driven by resource constraints or supported by principled forms of justification—will clearly have profound significance for the legitimacy of the system of constitutional ordering.65 This will be particularly the case in South Africa, where there is a clear textual commitment in the Constitution to ensuring that limitations on rights to freedom, dignity, and equality, including limitations on the progressive realization of access to housing, social security, and health care, must be “reasonable and justifiable.”66 In South Africa, these kinds of blockages will also undermine the ongoing transformation of the constitutional order—from a system based on radical inequality and arbitrary forms of state coercion, to a system that upholds the freedom, dignity, and equality of all South Africans.67
Nevertheless, in some theories of cooperative constitutionalism, courts are not seen as having any special responsibility for countering blind spots or burdens of inertia. In a departmentalist account, for example, the court's role is viewed simply in terms of the resolution of specific constitutional controversies between an individual and the state, and not in terms of a broader function of persuasion.68 From that perspective, if blind spots or inertia are to be confronted, it must be through a popular process of mobilization, rather than representative dialogue.69 Similarly, in a “conversational” model, of the kind now often associated with the United Kingdom's Human Rights Act of 1998,70 while courts potentially play an important role in countering legislative blind spots, they are not expected to counter legislative inertia. Robert Bennett has suggested that in a conversational understanding, the role of courts is simply “to deliberate and not to decide … [i]t is conversation rather than the substance of decisions that is key to the conversational perspective, the inertia of the system in passing legislation is of no particular moment.”71
In a dialogic understanding, however, legislative blind spots and burdens of inertia are of such profound significance to the legitimacy of the constitutional system as a whole that there is an urgent need to identify ways in which other social and governmental institutions, including courts, can mitigate these blockages. Further, both the coercive and conversational aspect of the judicial process will contribute to courts' capacity to perform a role of this kind.72
A dialogic understanding suggests, for example, that the concrete, ex post nature of constitutional courts' jurisdiction in South Africa, together with the coercive nature of courts' remedial powers, will mean that courts there are extremely well-placed to counter blind spots of application.73 Meanwhile, the visibility that attaches to court proceedings and decisions will mean that courts can also play an important role in helping rights claimants not otherwise represented in the legislature make their voices heard, individually and collectively, thus helping to counter blind spots of perspective.74 Similarly, it suggests that the combination of various coercive remedial powers (such as powers of invalidation, reading down, “reading-in,” or injunctive relief)75 and the publicity and authority that attach to court decisions, will give courts the capacity to counter legislative inertia, both directly and indirectly,76 so long as they are willing to engage in sufficiently “deep” or normatively appealing forms of reasoning about individual rights and constitutionalism.77
Moreover, in contrast to other theories of cooperative constitutionalism, dialogue theory asserts that once courts are engaged in judicial review in some way, they will have a direct responsibility to use both their communicative and coercive powers to the fullest extent possible, to help counter blind spots and burdens of inertia. First, in contrast to conversational theories, a dialogic theory suggests that, where courts fail to counter either legislative blind spots or inertia, they will be directly implicated in the process of illegitimate state coercion, rather than remaining mere bystanders to legislative failures of inclusion or responsiveness. This is because of the inherently coercive (rather than merely communicative) nature of judicial decision making; it is a consequence of any system in which judicial decisions are treated as decisive regarding the claims of particular parties before a court.78 Second, in contrast to theories of departmentalism, dialogue theory suggests that where courts fail to respond to legislative blockages, they will actively contribute to strengthening those blockages by making it more difficult for individuals and social movements in the broader constitutional culture to contest the legitimacy of the status quo.79 Third, in contrast to otherwise closely related theories, such as democratic minimalism,80 dialogue theory suggests that if courts decline to deal directly with blockages but, instead, remand a question to the legislature, they will unnecessarily displace other legislative priorities, in a way that only increases the potential for further legislative inertia.81
Why not have pure strong forms of judicial enforcement?
Given the blind spots and inertia affecting the realization of socioeconomic rights and the potential—indeed, the responsibility—of South African courts to help counter these executive and legislative failures, one might ask why, in a case such as Grootboom, courts should not have the broad, prescriptive role in the interpretation and enforcement of these rights proposed by supporters of pure strong-form review. From a dialogic perspective, however, the answer to this question will be straightforward: because courts, like legislatures, will be prone to failures of responsiveness in the process of constitutional rights-enforcement.
As with the other theories of cooperative constitutionalism considered here, dialogue theory does not assume that courts should intervene in the political process only in the event of clear error or patent unreasonableness or irrationality on the part of the legislature or the executive.82 Rather, it assumes that courts are entitled to intervene either coercively or communicatively (or, potentially, in both ways), where there are arguable failures of foresight, perspective, accommodation, or responsiveness. From a dialogic perspective, in particular, such intervention will be aimed at introducing new ideas, perspectives, or even equilibriums into the political process, all with a view to encouraging the legislature and the broader constitutional culture to reconsider its allegiance to the previous status quo.83 It will thus be inevitable that, at least in some cases, courts will uphold rights-based claims that do not find broad support within the culture.
In a dialogue model, this possibility will not be particularly troubling from the standpoint of democracy, because judicial rulings can always be narrowed or limited in effect by subsequent legislative action.84 However, if court decisions are treated as having broad and final effect (or pure strong-form status), the relationship between judicial review and democracy will tend to become far less certain—because the process of judicial intervention will have the potential to cause reverse burdens of inertia as well as to counter legislative inertia.85
Because section 74(1) of the South African Constitution contains a far more flexible amendment procedure than article V of the United States Constitution, judicial intervention will certainly be less likely to cause reverse burdens of inertia in South Africa than in the U.S.86 However, even a relatively flexible formal power of amendment may not be sufficient to prevent the danger of reverse inertia, given the potential costs associated with its use. First, the opportunity cost to a legislative majority associated with the use of this power (given the political resources that must be diverted toward marshalling the internal or bipartisan support needed to pass an amendment) will be much higher than the cost involved in passing ordinary legislation. This increases the level of disagreement required to motivate the legislature to intervene to correct reverse burdens of inertia.87 Second, reliance on the formal amendment power may incur unintended consequences for the enjoyment of constitutional rights. This is because it will be difficult for the legislature to create narrow or specific carve-outs from constitutional rights guarantees, considering the general and parsimonious terms in which those rights are typically expressed.
From a dialogic perspective, some further internal weakening of judicial review will thus almost always be required, over and above the external checks described above, before one can be confident that the process of judicial review will enhance, rather than undermine, overall commitments to democratic responsiveness.
How should judicial review be weakened?
“Intermediate” approaches to socioeconomic rights as negative rights
As a general matter, a dialogic understanding suggests a modest degree of weakening in this context, allowing courts to adopt both a relatively broad approach to the definition of rights, and strong remedies—provided that they defer to legislative sequels that reveal clear and considered disagreement with their prior reasoning, or commit themselves, when appropriate, to judicial narrow statement ex post (an intermediate approach to judicial enforcement).88 While such an approach will inevitably create a somewhat greater risk of reverse burdens of inertia than what is produced by weaker forms of judicial review, there is good evidence from at least one common law jurisdiction (Canada), that this risk will be tolerably small, given a consistent judicial commitment to judicial narrow statement ex post.89
In writing about first-generation rights, dialogue scholars have thus generally argued in favor of an intermediate approach to judicial enforcement as striking the best possible balance between concerns about failures of responsiveness in the legislative and judicial processes.90 There is also no reason why an intermediate approach should not apply to claims involving the negative dimension of second-generation rights claims to the same degree that it does to most first-generation rights claims.91 In both contexts, courts will be relatively well placed to make informed judgments about the likely effects of, and support for, recognizing rights-based claims. Further, even relatively broad statements by courts in relation to the scope or priority to be given to such rights may be informally overridden by the legislature, provided courts are willing to adopt an appropriately deferential approach to legislative sequels that display respectful forms of disagreement with their prior reasoning.
In cases concerning the negative dimension of the right of access to housing in South Africa, such as Jaftha v. Schoeman,92 and City of Johannesburg v. Rand Properties Ltd,93 dialogue theory would thus support the South African courts' use of relatively broad and deep forms of reasoning in defining the various dignity, privacy, and equality-based interests at stake.94 In both cases, the courts had long experience, from the adjudication of common law tenancy and mortgage disputes, in balancing the relevant constitutional interests at stake.95 Also, the courts' judgments did not preclude the possibility that the South African Parliament or the Johannesburg Municipal Council might subsequently devise a scheme for the execution of judgments against immovable property or the eviction of informal occupants based on a narrow interpretation of the courts' reasoning; at the same time, the courts' judgments still required officials, in the interim, to respect the broader limits suggested by the courts' reasoning regarding the execution of such judgments or the process of eviction.
In a case such as Grootboom, however, where the positive dimension of socioeconomic rights is concerned, a dialogic understanding suggests that courts should take a more cautious approach in defining the scope or relative priority of a rights-based claim ex ante, if they are to avoid causing reverse burdens of inertia. Constitutional courts seem more prone to error in this context when assessing the constitutional culture's likely support for rights-based claims. This is chiefly because courts generally have a less secure basis for prediction and more limited access to relevant information with respect to positive socioeconomic rights claims, than with regard to first-generation rights claims or claims involving negative socioeconomic rights.96 Also, as a practical matter, broad judicial pronouncements on the scope of positive socioeconomic rights will tend to be harder to reverse if the executive acts to implement a court decision in an appropriately prompt and conscientious way. The exercise of such rights will ordinarily involve allocation of substantial state resources that cannot easily be withdrawn once programs are in place.97
In Grootboom itself, for example, the Constitutional Court had little, if any, information by which to assess (a) the number of homeless persons living in South Africa or the costs associated with providing emergency housing for them, or (b) the extent to which those living in harsh informal housing conditions might elect to be homeless if the Court were to recognize an individually enforceable right to basic emergency housing for all South Africans. Nor was the Court in a position to gauge the likely impact of such a right on the enjoyment of other rights in sections 26 and 27, or on the rights of the child and rights to education contained in sections 28 and 29 of the Constitution. At the time, none of the judges had the sort of directly relevant direct experience that might have allowed them to make informed decisions as to the likely implications of recognizing an individually enforceable right to basic shelter.98 Further, had the parties to Grootboom, such as the Cape municipality, taken seriously an order requiring them to provide, immediately, basic housing to homeless South Africans living in the municipality, they would have been required to make fairly substantial outlays. It might well have depleted the overall housing budget available for more medium-term housing goals.
Socioeconomic rights as positive rights: Weak rights v. weak remedies
Courts could, however, adopt an approach to the enforcement of socioeconomic rights that was stronger than that adopted by the South African Constitutional Court in Grootboom, but weaker than an intermediate approach. This could entail a preference either for weak rights or for weak remedies.
In some theories of cooperative constitutionalism, the choice between these axes of weakness will be very clear, since the role of the court is typically seen in either coercive or communicative terms. In a conversationalist theory of judicial review, for example, the role of courts is simply to deliberate, not to decide, so that weak remedies, because they entail less sacrifice of judicial efficacy, will almost always be preferred over weak rights.99 On the other hand, in a democratic minimalist understanding, a key part of the court's role is to resolve concrete controversies without resort to the kind of broad or deep judicial reasoning that can destabilize a constitutional order,100 so that weak rights will almost always be preferred to weak remedies. Similarly, in a departmentalist understanding, the courts' role is simply to decide the particular concrete controversy; judicial opinions are not afforded any presumptive respect in the broader political process and, thus, nothing is lost when courts adopt a weak rights, as opposed to weak remedies, approach.101 Additionally, in more moderate departmentalist understandings, weak remedies will help to ensure that executive officials are free to disagree with a court order without being liable (nominally) for contempt of court, making this preferable to a weak rights approach on two counts.102
In a dialogic understanding, however, both the coercive and communicative aspects of courts' decisions are important to constitutional self-government and, thus, something is always lost when judicial intervention is weakened at either a substantive or remedial level. If courts adopt a weak rights approach, they necessarily forego the chance to engage in deep forms of reasoning, or to make explicit normative appeals to the broader culture, because, as Sunstein notes, normative depth inevitably carries with it a certain breadth.103 In doing so, they thus limit their ability to use communicative rather than coercive tools, to help counter blind spots of perspective and priority-driven burdens of inertia.104
Conversely, however, if courts adopt a weak remedies approach, they substantially undermine their capacity to counter legislative inertia, particularly in its coalition-driven and compound forms. Without a time-sensitive dimension, a court order will give legislators and executive officials with competing political priorities little reason to give precedence to a particular issue unless the court's decision serves to mobilize a broad coalition of political actors to put pressure on the legislature or executive to act. Absent such mobilization, the factors that cause burdens of inertia to form in the first place (competing political priorities, partisan incentives to divert attention from the issue, or compound inefficiencies) are likely to continue to impede meaningful change, even where there is a good faith commitment on the part of the executive to implement court decisions. Similarly, where a court order lacks any coercive dimension, it will have little direct impact on administrative inertia. In cases such as TAC, where constitutional proceedings are brought by an organized social movement with considerable ability to litigate, constitutional plaintiffs may themselves have the capacity to monitor executive compliance and bring further proceedings in the event of non-compliance with a court order (ongoing inertia).105 However, in many cases, this will not be the situation, either because the burden imposed by the grant of purely declaratory relief will exceed a social movement's capacity for monitoring and enforcement,106 or because no appropriate plaintiff is party to the proceedings (as in Grootboom).107 In such cases, the imposition of some form of coercive or injunctive relief (or, in South African parlance, the grant of a “structural edict”), that at least requires parties to report back to a court on compliance, will generally be essential in order to ensure an effective judicial response to inertia.108
From a dialogic perspective, there is thus a clear trade-off to be made between a weak rights/strong remedies (weak-strong) and strong rights/weak remedies (strong-weak) approach in terms of the efficacy of judicial review when it comes to countering blind spots of perspective and priority-driven inertia, versus coalition-driven and compound inertia.
Socioeconomic rights as positive rights: the South African context
As Wojciech Sadurski reminds us, a trade-off of this type must always be made, not in the abstract, but with sensitivity to the circumstances of a particular constitutional democracy and case.109 Different constitutional systems will have different institutional features that may alleviate, or worsen, particular legislative failures. For example, some systems have active parliamentary human rights committees that can play a role in mitigating legislative blind spots;110 in others, powerful human rights commissions play a role in countering legislative inertia. Similarly, the international or transnational human rights mechanisms may offer a direct counter to legislative blind spots and inertia in some domestic systems (through binding forms of individual dispute resolution, for example),111 whereas in others, international pressure may increase the danger of legislative inertia or non-responsiveness in the realization of socioeconomic rights.112
In South Africa specifically, there are at least two reasons to think that, at present, a weak-strong rather than strong-weak approach to judicial enforcement is called for. First, experience thus far suggests that a weak rights approach has not prevented courts from engaging in the sort of communicative intervention that can counter blind spots of perspective in the political process. In Grootboom and TAC, the Constitutional Court gave clear voice to the vulnerability and urgent need of the claimants without engaging in deep normative reasoning that might implicitly have suggested that every South African had an inalienable right to immediate access to emergency shelter or antiretrovirals at state expense.113
Second, there is evidence to suggest that in South Africa, over the last decade, coalition-driven and compound inertia have tended to be far more significant than priority-driven inertia in explaining the failure to realize the positive dimension of socioeconomic rights.114 The basic commitment of the South African community to ensuring the progressive realization of rights to housing, health care, food and water, and social assistance was clearly expressed in the drafting of the Constitution. For the most part, the commitment also clearly remains strong in South African constitutional culture, despite disagreement as to the best way to realize these rights.115 On the other hand, disagreement within the ruling majority party (the African National Congress, or ANC) has delayed the adoption of effective national policies aimed at the realization of these rights, particularly the right to health;116 implementation of these policies has also been subject to serious compound inertia.
This latter pattern of delay has been particularly evident where the right to housing is concerned, since inertia was apparent even before the Constitutional Court's decision in Grootboom and has arguably increased in recent years, as national, provincial, and local governments have developed new housing plans, aimed at fulfilling the obligations announced in Grootboom. For example, the Cape municipality (one of the respondents in Grootboom) announced in 2001 a plan to provide formal public housing to the thousands of people living in informal settlements along the road that connects the center of Cape Town with the airport, but it made no progress in implementing the plan for more than four years.117 In Gauteng, the local and provincial governments announced a plan in 2001 to provide water, sewerage, and electricity within two years to all of the residents living in the area of Diepsloot, an informal settlement just north of Johannesburg,118 but by July 2004, little progress had been made in providing water, sewerage, or electricity.119 Similar forms of compound inertia are also apparent regarding the right of access to health care services, especially in the context of the national government's 2003 plan to extend the rollout of antiretrovirals to all South Africans living with HIV/AIDS.120
There is thus reason to think that, for the time being, the loss to democratic responsiveness in South Africa will be less where courts take a weak-strong rather than strong-weak stance, vis-à-vis the enforcement of provisions such as sections 26(2) and 27(2) of the Constitution.
Weak-strong review and international human rights law
Admittedly, some scholars believe that a weak rights approach in South Africa will entail a further important loss by diminishing the potential for international human rights–based understandings to prompt more concrete and immediate steps toward the progressive realization of socioeconomic rights.121 They argue that the clear textual parallels between sections 26(2) and 27(2) of the Constitution and articles 2, 11 and 12 of the ICESCR create a unique opening for courts in South Africa to encourage legislators to provide the minimum core socioeconomic rights identified by the United Nations Committee on Economic, Social, and Cultural Rights,122 without raising concerns about the legitimacy of judicial enforcement of these rights. With that in mind, they suggest that in South Africa, the Constitutional Court was mistaken in adopting a weak rights rather than intermediate approach to the enforcement of socioeconomic rights as positive rights.
It is extremely important, however, to distinguish in this context between the Court (a) relying on a truly cosmopolitan, or international, understanding of the minimum core, which is based on the fact that the practice of states parties to the ICESCR suggests an overlapping consensus as to the minimum core content of the rights in the Covenant, and (b) borrowing the conceptual apparatus of the minimum core as an independent basis for interpreting sections 26 and 27 of the South African Constitution at the domestic level.123
From a dialogic point of view, there is no difficulty with the first approach, since the Constitutional Court can give at least presumptive respect to the minimum core rights, identified by the CESCR committee without committing itself to the scope or priority given to particular rights-based claims under sections 26(2) and 27(2). The international minimum core derives, not from an abstract assignment of moral priority to specific rights-based claims but, rather, from a survey of state practices conducted by the committee over a period of many years.124 Further, the international minimum core has no directly enforceable status, either as a matter of domestic or international law, in South Africa.125 As the Constitutional Court itself observed in Grootboom, it can thus give some weight to the international minimum core as a concept, in determining whether, in fact, South Africa has complied with its obligations under sections 26(2) and 27(2), without committing itself to following the CESCR committee's approach in any specific case.126 In contrast, if the Constitutional Court were to borrow the idea of the minimum core and transform it into a fully domesticated approach to the interpretation of sections 26(2) and 27(2), it would then be required to provide a general normative or conceptual account of the minimum core obligation in light of South African understandings and circumstances. It would also be required, presumptively, to enforce that obligation in every case.
For some scholars, this will pose little difficulty, because there will be little room for reasonable disagreement among South Africans as to the content of the minimum core of most socioeconomic rights127 or the intersection between sections 26(2) and 27(2) and the right to life in section 11 of the Constitution. For dialogue scholars, however, there is more extensive scope for disagreement because, as they would have it, in most cases, South Africans could reasonably affirm a variety of perspectives on the ranking of socioeconomic rights claims, depending on whether they gave priority to the relationship between these rights and first-generation rights, such as the rights to life, dignity or equality. If the Court were to define the minimum core in a way that gave clear priority to any one of these different intersectional approaches, it would be embarking on a process of rights definition that ignored the scope of existing disagreements among South Africans while purporting to foreclose future dialogue with the broader culture on this subject.
Over time, through actual dialogue, South Africans may come to agree on a set of housing or health care requirements on which to ground individually enforceable rights for all South Africans, regardless of their capacity to pay or the state's budgetary constraints.128 It may be that, through a process of extensive representative and community dialogue, universal access to certain basic amenities for informal housing or, for that matter, to antiretrovirals will come to be recognized by the broader South African constitutional culture as part of the settled content of the rights of access to housing or health care under sections 26(2) and 27(2). In these circumstances, a dialogic approach would certainly not prevent a court from identifying these claims as ones that, like the international minimum core, are entitled to a heightened degree of respect under sections 26(2) and 27(2). Like the process that has underpinned the definition of an international minimum core, however, this iterative process of rights definition would be entirely distinct from an approach whereby the Constitutional Court unilaterally and abstractly defined the scope of a minimum core, including the levels of risk, benefit, and cost necessary for a person to claim a minimum core right in accessing specific goods.
In arguing for a weak-strong approach to the enforcement of socioeconomic rights in a case such as Grootboom, this article has sought to contribute to the ongoing debate in South Africa as to how judicial enforcement of socioeconomic rights might legitimately be strengthened in the future without undermining commitments to overall democratic responsiveness. In this context, one of the key advantages of a dialogue model is that it does not require the Constitutional Court to abandon its insistence on a weak approach to interpreting the substantive scope of sections 26(2) and 27(2); rather, the model is fully consistent with the approach that the Court in TAC suggested might be appropriate in future cases, and which had been adopted at a lower court level in Grootboom and TAC.
However, a broader aim of this article has been to use the South African debate to stimulate discussion of the advantages of dialogue theory over other theories of cooperative constitutionalism when it comes to interpreting and enforcing socioeconomic rights guarantees more generally. In its basic starting point, dialogue theory has much in common with other theories of cooperative constitutionalism, such as departmentalism, constitutional conversationalism, and democratic minimalism. All four theories endorse an approach to judicial review that is substantially weaker than the archetypal model of strong-form judicial review associated with judicial review in the United States129—generally, and in the specific context of socioeconomic rights enforcement. However, dialogue theory is distinguished from the other theories by treating the courts as having a much greater capacity and responsibility to confront political failures in the realization of socioeconomic rights. In contrast with the others, it points also to the need for a more flexible approach to judicial enforcement of socioeconomic rights guarantees, if countries such as South Africa are ultimately to realize their commitments to a system of inclusive and responsive constitutional ordering.