Poverty and Fundamental Rights

Bilchitz, David

doi:10.1093/acprof:oso/9780199552160.001.0001

Cited by 75 publications

(41 citation statements)

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“…The South African social rights jurisprudence has been instructive in demonstrating how such duties can indeed be enforced judicially. 68 Of course, there will be cases in the grey zone, but that is true of almost every constitutional right. Furthermore, with regard to the second duty, at least for some objectives-say the objective to enact a uniform civil code in the Indian Constitution 69 or the objective to provide workers adequate rest in the Gambian Constitution 70 -it is possible to determine whether 'full realisation' has been (broadly) achieved.…”

Section: A Right or A Directive? Practice Not Structurementioning

confidence: 99%

Constitutional Directives: Morally‐Committed Political Constitutionalism

Khaitan¹

2019

Modern Law Review

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About 37 state constitutions around the world feature non‐justiciable thick moral commitments (‘constitutional directives’). These directives typically oblige the state to redistribute income and wealth, guarantee social minimums, or forge a religious or secular identity for the state. They have largely been ignored in a constitutional scholarship defined by its obsession with the legitimacy of judicial review and hostility to constitutionalising thick moral commitments other than basic rights. This article presents constitutional directives as obligatory telic norms, addressed primarily to the political state, which constitutionalise thick moral objectives. Their full realisation—through increasingly sophisticated mechanisms designed to ensure their political enforcement—is deferred to a future date. They are weakly contrajudicative in that these duties are not directly enforced by courts. Functionally, they help shape the discourse over a state's constitutional identity, and regulate its political and judicial organs. Properly understood, they are a key tool to realise a morally‐committed conception of political constitutionalism.

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Section: A Right or A Directive? Practice Not Structurementioning

confidence: 99%

Constitutional Directives: Morally‐Committed Political Constitutionalism

Khaitan¹

2019

Modern Law Review

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“…General decision-makers may simply overlook or fail to give sufficient weight to the problems that may be faced in particular cases. 65 The claim is alluring enough. It resonates deeply with the defence of judge-made common law in Anglo-American jurisdictions.…”

Section: The Authenticity Of Case-based Review: Evidential Particularismmentioning

confidence: 99%

Why Judicial Review?

Langford

2017

OLR

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Despite the flourishing of judicialisation of rights across the world, scepticism is not in short supply. Critiques range from concerns over the democratic legitimacy and institutional competence of courts to the effectiveness of rights protections. This article takes a step back from this debate and asks why should we establish or persist with judicial review. For reasons of theory, methodology, and practice, it argues that closer attention needs to be paid to the motivational and not just mitigatory purposes for judicial review. The article examines a range of epistemological reasons (the comparative advantage of the judiciary in interpretation) and functionalist reasons (the attainment of certain socio-political ends) for judicial review and considers which grounds provide the most convincing claims in theory and practice.

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“…69 The Guiding Principles are now considered the most recent and authoritative statement adopted by the UN on the human rights responsibilities of corporations, 72 and although they have been the subject of trenchant criticism, Bilchitz indicates that the Principles have generally been well received by the international community and that they serve as a common point of reference in the area of corporate human rights obligations. 73 While this is unlikely, some even go so far as to suggest that the Guiding Principles may now be considered soft law and therefore a useful tool to encourage but not to oblige corporations to comply with human rights responsibilities. 74 In terms of Principle 12, the obligations stemming from the Guiding Principles relate to all human rights guaranteed in international law instruments such as the Universal Declaration of Human Rights, 1948, the International Covenant on Civil and Political Rights, 1966 (ICCPR) and the International Covenant on Economic, Social and Cultural Rights, 1966 (ICESCR).…”

Section: Corporate Social Responsibilitymentioning

confidence: 99%

Bridging the public–private regulatory divide: South African mines and the right of access to water

Kotzé

Fuo

2016

Journal of Energy & Natural Resources Law

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In this article we explore the extent to which the South African mining industry can contribute to realising positive obligations stemming from socio-economic rights, and in particular, the right of access to water. Our hypothesis is that government, as the primary addressee of socio-economic rights obligations, is unable fully and on its own to realise the right of access to water in South Africa. Because of the ecological impact of mines on water resources and resultant socio-economic externalities that are passed on to society, we argue that mines must contribute to the South African transformative constitutional agenda by realising, albeit in a limited way, positive obligations related to the right of access to water. Our analysis is situated at the interface of three conceptual frameworks within which we theoretically embed the inquiry: the movement from government to governance and the involvement of non-state actors in governance tasks, corporate social responsibility, and human rights obligations of corporations. We suggest in the final instance that a practical way for mines to contribute to the realisation of the right of access to water could be through their statutorily prescribed social and labour plans.

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Poverty and Fundamental Rights

Cited by 75 publications

References 0 publications

Constitutional Directives: Morally‐Committed Political Constitutionalism

Constitutional Directives: Morally‐Committed Political Constitutionalism

Why Judicial Review?

Bridging the public–private regulatory divide: South African mines and the right of access to water

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