One of the most distinctive elements of South Africa’s jurisprudence has been its willingness to adjudicate socio-economic rights in addition to traditional civil and political rights. While the advancement of social welfare as a whole has clearly proceeded at a far slower pace than political equality, the Constitutional protection of social rights and its enforcement by the Court continues to inspire social justice advocates in their work within South Africa and abroad. Indeed, despite the as-yet inadequate advancement of substantive socio-economic equality, much can be praised about the South African Constitutional project—and much can be learned from it.
Particularly, much benefit will result from closer examination of the process through which the South African Constitutional Court decided how to adjudicate social rights cases—a jurisprudential investigation of the manner of enforcement rather than of the substantive rights. These are not the normal comparative law questions of similarity, difference, and connection, but rather the more pragmatic inquiries into functional adaptability and transnational applicability. Can the lessons of the South African Court’s first generation aid a nation adopting, amending, or newly interpreting its national constitution’s commitment to social justice? Specifically, can the Court’s unique approach to formulating socio-economic rights jurisprudence be exported to other countries? In this essay, I assert that the unique but adaptable manner in which the Court’s social rights jurisprudence accommodates classic non-justiciability arguments, what I call “differentiated incorporation,” advances social justice within South Africa and creates an exportable model of social rights enforcement.
5 Loy. U. Chi. Int'l L. Rev. 29 (2007)