Dr Murray Wesson
‘But a constitution is not intended to embody a
particular economic theory, whether of paternalism
and the organic relation of the citizen to the State or
of laissez faire. It is made for people of
fundamentally differing views…’
Lochner v New York 198 US 45 (1906) 198 (Holmes J)
John Rawls, A Theory of Justice
Each person is to have an equal right to the most
extensive total system of equal basic liberties
compatible with a similar system of liberty for all.
Social and economic inequalities are to be
arranged so that they are both (a) to the greatest
benefit of the least advantaged … and (b)
attached to offices and positions open to all under
conditions of fair equality of opportunity.
Rawls on Constitutional Design
The first principle (the basic liberties) is suitable for
constitutionalisation but the second principle (the
difference principle and fair equality of
opportunity) should be pursued through ordinary
law-making processes.
In Political Liberalism, Rawls concedes that a social
minimum – providing for the basic needs of citizens
– is also a ‘constitutional essential.’
Erosion of the Rawlsian Distinction
The Growth of Positive Obligations.
The Embrace of Substantive Equality.
The Proliferation of Social Rights.
Procedural innovations to facilitate representation
of disadvantaged individuals and groups.
The Growth of Positive Obligations
‘Genuine, effective freedom of peaceful assembly
cannot … be reduced to a mere duty on the part of
the State not to interfere’ (Plattform ‘Artze fur Das
Leben’ v Austria (1991) 13 EHRR 204 para 32).
‘Time and again these have been shown to be false
dichotomies’ (R v Secretary of State for the Home
Department, ex parte Limbuela [2005] 1 AC 396
para 92).
The Growth of Positive Obligations
‘The state must respect, protect, promote and fulfil the
rights in the Bill of Rights’ (section 7(2) of the 1996
South African Constitution).
The Embrace of Substantive Equality
Formal equality: Everyone should be treated
equally, regardless of their membership of
particular groups.
Substantive equality: Measures may be taken to
promote the position of disadvantaged individuals
and groups.
The Embrace of Substantive Equality
‘Nothing in this article … shall prevent the State from
making any special provision for the advancement of
any socially and educationally backward classes of
citizens or for the Scheduled Castes and the
Scheduled Tribes’ (section 15(4) of the 1949 Indian
The Embrace of Substantive Equality
‘…the State shall take legislative and other measures
… designed to redress any disadvantage suffered by
individuals or groups because of past discrimination’
(Section 27(6) of the 2010 Constitution of Kenya).
The Proliferation of Social Rights
Social rights establish rights to goods such as
housing, healthcare, social security, food and water,
although this obligation is often made subject to
progressive realisation and available resources.
Social rights were recognised in the 1937
Constitution of Ireland and the 1949 Constitution of
India, but in the form of non-justiciable principles.
The Proliferation of Social Rights
The 1996 Constitution of South Africa includes
justiciable social rights.
Every Latin American constitution now includes the
rights to education, healthcare, social security and
food, as does the 2012 Constitution of Egypt.
Courts in the United Kingdom and Germany have
interpreted some civil and political rights so as to
include social rights guarantees.
Constitutional Law and Reasonable
Rawls supposes that in the well-ordered society
reasonable citizens will agree on the principles of
However, most democratic societies feature deep
and reasonable disagreement about the principles
of justice, including the state’s obligations in respect
of social and economic inequality.
Constitutional Law and Reasonable
Constitutions differ from ordinary law given that
they constrain ordinary law-making processes.
For democratic reasons, and reasons of legitimacy,
constitutions should attract a broad cross-spectrum
of support.
To what extent can constitutions – and by extension
courts – address issues of social justice in
circumstances where the nature of the socially just
society is reasonably contested?
A Right to a Social Minimum or a Right
to Social Democracy?
‘Everyone has the right to have access to healthcare
services’ (section 27(1) of the 1996 South African
‘Every person has the right to the highest attainable
standard of health’ (section 43(1)(a) of the 2010
Kenyan Constitution).
Judicial Enforcement of Positive
‘A reasonableness challenge requires government to
explain the choices it has made ... In this way, the social
and economic rights entrenched in our Constitution may
contribute the deepening of democracy. They enable
citizens to hold government accountable not only
through the ballot box but also, in a different way,
through litigation’ (Mazibuko v City of Johannesburg
(2010) 4 SA 1(CC) para 71).
Accountability implies a secondary or supervisory role
for the judiciary.
Constitutional justice is not co-extensive with justice,
at least where justice is reasonably contested.
However, constitutions and courts can assist in
securing a basic level of welfare provision, and also
deepen accountability in respect of the state’s
human rights obligations, especially in respect of
vulnerable individuals and groups.